Category Archives: Burden of proof

Cal.2: SWs must be executed reasonably, and facts determine who has the burden of proof

A search warrant must be executed reasonably, and it depends on which side has knowledge of what for the burden of proof. Here, the issue involves a blood draw at a hospital, and defendant has access to that information, and … Continue reading

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OH5: To prove GFE doesn’t apply, the defense has to show bad faith [never mind that the burden is on the govt in GFE]

Officers could conduct a protective sweep when executing a search warrant. “In the case at hand, there was no testimony regarding bad faith on part of the officers who searched the residence where Appellant was hiding.” State v. Davis, 2018-Ohio-4368, … Continue reading

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OH8: State had to argue plain view to trial court to argue it on appeal

The state’s plain view argument wasn’t pressed in the trial court, so it can’t be a basis for appeal. Even on the merits, the state loses because the stop was invalid, and the detention unreasonable all before the alleged plain … Continue reading

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N.D.Ohio: Parole officers’ clinical reports didn’t have any of the added color at the suppression hearing, so the court doesn’t credit their testimony

“Based upon the totality of the circumstances and the Court’s assessment of the credibility of the parole officers, the Court finds that the [parole authority] lacked reasonable suspicion to search Neff’s cell phone. The results of the search, therefore, must … Continue reading

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CA10: You can’t tell the court it needs to apply the independent source case law a certain way and then complain on appeal that it did what you asked

This case started with hotel housekeeping coming in to clean a room and seeing obvious drug paraphernalia. The police were called, and they were shown. A search warrant was prepared showing probable cause to connect defendants to the room by … Continue reading

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NV erroneously puts burden on def to show that a warrantless entry to a locked bedroom was unreasonable and not a private search

Police were called to a house and the owner wanted the police to enter and search a locked room occupied by another adult with permission from the owner to stay there. The officer declined because defendant had reasonable expectation of … Continue reading

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VI: Officer’s use of “legal buzz words” with “rote and mechanical” testimony and then memory failures leads trial court to conclude he’s not credible

The officer’s use of “legal buzz words” with “rote and mechanical” testimony and then memory failures leads trial court to conclude he’s not credible. People v. Stevens, 2018 V.I. LEXIS 70 (Super. Ct. July 26, 2018):

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N.D.Ga.: Govt bore burden of proof on inevitable discovery and failed; weak hearsay not credited

The issue of inevitable discovery was treated as an aside by the government, although it bore the burden of proof on it. It seeks the use of hearsay on inevitable discovery that was hard to credit considering the posture of … Continue reading

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TX: Even if suppression motion is made in trial, state bears burden on a warrantless search

Whether a motion to suppress is filed pretrial or during trial, if the search is shown to be warrantless, the burden shifts to the state to prove the legality of the warrantless search. White v. State, 2018 Tex. Crim. App. … Continue reading

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CA7: “This is a hornbook example of how to waive an argument on appeal.”

“This is a hornbook example of how to waive an argument on appeal.” The search issue presented on appeal was never presented to the trial court. “[P]arties cannot conjure up brand new legal theories on appeal like this. Failing to … Continue reading

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CO: Voluntariness of consent is proved by a preponderance of the evidence, not by clear and convincing evidence

Voluntariness of consent in Colorado is proved by a preponderance of the evidence, not by clear and convincing evidence. People v. Delage, 2018 CO 45, 2018 Colo. LEXIS 435 (May 30, 2018). The CI gave probable cause to stop defendant … Continue reading

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KY: The objective evidence showed voluntary consent on totality; trial court erred in finding no consent

Defendant had a head injury and couldn’t remember the accident. Still, she was lucid when the officer talked to her, and she objectively consented on the objective facts. Her subjective belief wasn’t important. The trial court clearly erred in finding … Continue reading

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