Category Archives: Burden of proof

D.V.I.: Failure to put on proof at suppression hearing leads to show cause order to defense

Defendant filed a motion to suppress a statement and a search. At the hearing, however, the search wasn’t challenged. Defendant has to show cause why that part of the motion should not be denied. United States v. Henry, 2021 U.S. … Continue reading

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NE: State failed in its burden of proof on inventory; the defense has no duty to clear up confusion in the proof

The state carried the burden, and it failed to prove that the inventory of defendant’s vehicle followed standardized procedure or was reasonable. The defense had no burden to clear up any evidentiary confusion because the state had the burden. State … Continue reading

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D.Colo.: Failure to call the officers with enough information to show collective knowledge as witnesses made govt fail in its burden of proof

The government failed to prove collective knowledge at the hearing on the motion to suppress. A critical witness to collective knowledge wasn’t called. United States v. De La Rosa-Calderon, 2021 U.S. Dist. LEXIS 3378 (D. Colo. Jan. 7, 2021):

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CA6: Def waived Franks argument on appeal by only arguing PC below

Defendant’s Franks argument on appeal fails because the motion to suppress was based on a lack of probable cause and didn’t direct the court to any alleged false statement under Franks. United States v. Baker, 2021 U.S. App. LEXIS 113 … Continue reading

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OH2: Post-conviction 4A claim of lack of PC for SW fails for failure to include affidavit in record

Defendant’s post-conviction claim that defense counsel was ineffective for not challenging the validity of the search warrant in his case fails. He has to show he would have prevailed on the search issue, but the affidavit for the warrant isn’t … Continue reading

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W.D.N.C.: Indian tribes not subject to 4A claims

“Plaintiff cannot bring a claim based on a Fourth or Fourteenth Amendment violation against an Indian tribe like the Defendant. Oviatt v. Reynolds, 733 F. App’x 929, 933 (10th Cir. 2018) (dismissing Fourth Amendment claim against an Indian tribe ‘because … Continue reading

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OH9: State argued RS but didn’t come forward with proof of it

The state argued there were factors supporting reasonable suspicion, but they didn’t come forward with it. Order granting motion to suppress affirmed. State v. Thomas, 2020-Ohio-3539, 2020 Ohio App. LEXIS 2453 (9th Dist. June 30, 2020). The search warrant was … Continue reading

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IL: Arguing only lack of arrest warrant waives lack of PC

Pleading and litigating a motion to suppress in the trial court that the officers lacked an arrest warrant or an exception waived his appellate claim of a lack of probable cause. People v. Montes, 2020 IL App (2d) 180565, 2020 … Continue reading

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FL5: Trial court’s order suppressing warrantless black box search affirmed for lack of a record

The trial court granted a motion to suppress the search of defendant’s car’s black box (“event data recorder”). The state on appeal seeks to depart from State v. Worsham, 227 So. 3d 602, 603 (Fla. 4th DCA 2017), that there … Continue reading

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D.Minn.: Desire to file a Franks motion doesn’t expand discovery rights

“Generally, the fact that a defendant wishes to seek a Franks hearing ‘does not entitle him or her to additional discovery before the Franks hearing.’” The government stated it has provided discovery required by Rule 16. Defendant’s request for further … Continue reading

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IL: Flight from gunshots is not RS

Defendant’s flight into his house on hearing gunshots was not reasonable suspicion to give chase or probable cause to enter the house to arrest him. Anybody would flee gunshots. People v. Craine, 2020 IL App (1st) 163403, 2020 Ill. App. … Continue reading

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CT: That PC is less than a preponderance is well established in constitutional law; court declines to adopt preponderance standard here

Officers had probable cause defendant possessed child pornography on his computer from his roommate’s seeing him look at two pictures in succession of nude children. The longstanding principle is that probable cause is less than a preponderance, and the court … Continue reading

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N.D.W.Va.: Officers’ knowledge of def’s violent past justified patdown during stop

Officer’s prior knowledge of defendant’s violent past and criminal history, with reasonable suspicion, justified his patdown. United States v. South, 2020 U.S. Dist. LEXIS 35208 (N.D. W.Va. Mar. 2, 2020).* Officers had a search warrant for the car defendant was … Continue reading

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S.D.W.Va.: No REP in pole camera observations of who came and went from def’s front door

Pole camera observations from the street ended up in a wiretap application. Carpenter provides no relief. The only observations were the comings and goings from the house for which there was no reasonable expectation of privacy. “Because the Defendant has … Continue reading

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CO: State can assert new grounds to support search after remand

After a remand, the state is free to raise new grounds to support the search. People v. Tallent, 2020 COA 14, 2020 Colo. App. LEXIS 127 (Jan. 30, 2020). “A bare assertion of authorization from a third party along with … Continue reading

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PA: A command to roll down the window with an officer on each side of the car is an investigative detention

Defendant’s stop and one officer on each side and a command to roll down the window tells him that he’s required to talk to the officer. That’s an investigative detention. Commonwealth v. Powell, 2020 Pa. Super. LEXIS 67 (Feb. 3, … Continue reading

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