Category Archives: Burden of proof

CA10: Jury instruction that search issue was for the court and not the jury didn’t lessen the govt’s burden of proof

Defendant’s challenge to the investigative techniques in this child rape case led the district court to instruct the jury that the propriety of searches and seizures were questions for the court. The defense objected that the instruction lessened the government’s … Continue reading

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IA: Dad can’t raise son’s rights when son was arrested and gave dad up as his source of drugs

Defendant’s juvenile son was selling from his dad’s stash. After the son’s arrest, he gave up his source. Defendant can’t raise violations of his son’s Fourth and Fifth Amendment or statutory rights as a juvenile to challenge the probable cause … Continue reading

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VA: “You can’t do that. You can’t search my car.” not per se violation of 4A and it’s admissible to show possession [by the only person in possession]

There is no per se rule that “You can’t do that. You can’t search my car.” was a violation of the Fourth Amendment. Under traditional 403 probative value v. prejudice balancing, the trial court did not err in admitting it … Continue reading

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OH12: SW for text messages on a cell phone was not overbroad where it was limited to messages from one person

Defendant was a police officer who was suspected of sexual battery of a student ride along. There were text messages, and a search warrant was obtained for his cell phone. The lack of a time frame for the text messages … Continue reading

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TX14: Argument that arrest violated 4A wasn’t specific enough to preserve lack of PC

Arguing that one’s arrest violated the Fourth Amendment didn’t preserve his lack of probable cause claim on appeal. Doremus v. State, 2017 Tex. App. LEXIS 7702 (Tex. App. – Houston (14th Dist.) Aug. 15, 2017). The affidavits in support of … Continue reading

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OH2: Particularity and scope of search have to be raised and litigated to preserve for review

Claims of particularity and scope of search have to be raised and litigated in the trial court to appeal them. State v. Terrell, 2017-Ohio-7097, 2017 Ohio App. LEXIS 3224 (2d Dist. Aug. 4, 2017). Tossing a gun in flight from … Continue reading

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ME: SW not needed to photograph def’s facial injuries

Police didn’t need a search warrant to photograph injuries on defendant’s face. State v. McNaughton, 2017 ME 173, 2017 Me. LEXIS 193 (Aug. 1, 2017). There was neither reasonable suspicion for defendant’s stop nor his patdown. No facts were put … Continue reading

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OR: Three on preservation of search issues at the suppression hearing

Defendant preserved his argument that officer safety was not a valid justification in his memorandum of law, and that put the state and the trial court on notice that was an issue the state had to address, and didn’t. State … Continue reading

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NH: SW jurisdictional argument has to be presented to trial court first

Defendant’s jurisdictional argument that AOL’s emails were in Virginia and not amenable to a New Hampshire search warrant wasn’t presented to the trial court, so it’s waived. State v. Bergeron, 2017 N.H. LEXIS 143 (June 30, 2017). [Note: Jurisdiction of … Continue reading

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M.D.Ala.: Supposition isn’t enough to discredit officer’s testimony about the stop

The court finds the officer’s testimony credible: “The court is likewise unpersuaded by the defendants’ arguments that Arwood’s testimony regarding the events of the day and his reason for stopping defendants’ vehicle lacks credibility. Defendants raise a litany of concerns … Continue reading

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