Category Archives: Burden of proof

NM: State had to support search incident to arrest of def’s purse at suppression hearing and didn’t

Defendant’s purse over the shoulder was not part of her person. It was removed from her and later searched incident to arrest. The state failed to support the search incident doctrine at the suppression hearing of where the purse was … Continue reading

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CA9: Franks challenge has to include showing lack of PC

On a Franks challenge, “Defendant failed to establish that, if additional information about the informant’s credibility had been included, the affidavit would have been insufficient to establish probable cause.” United States v. Carter, 2023 U.S. App. LEXIS 22478 (9th Cir. … Continue reading

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D.Ariz.: No REP in shared folder on computer open on eMule program

The government’s “pre-search” of a shared folder on defendant’s computer available through eMule was not subject to a reasonable expectation of privacy and was reasonable. United States v. Johnson, 2023 U.S. Dist. LEXIS 146664 (D. Ariz. Aug. 21, 2023), adopting … Continue reading

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CA5: No police wrongdoing here to support “police created exigency”

Defendant came in to the police for an interview about sex assault in the Army. As it developed, exigency for seizure of defendant’s cell phone arose. This was not a police created exigency which requires some wrongdoing on the part … Continue reading

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CA6: Unintended target of a police shooting, another officer, has a 4A seizure and excessive force claim

One officer fired a gun at a suspect inside a dwelling, apparently without aiming, and hit another officer. That was still a Fourth Amendment seizure of the person of the officer despite being an unintended target. Kilnapp v. City of … Continue reading

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OH5: Pickup of visitor parked on street could be searched with SW for premises where it was suspected of drug transactions there

Defendant’s pickup was parked on the street in front of another man’s house that was searched with a warrant. His truck was searched too, but wasn’t mentioned in the warrant. “We find the search of the truck was authorized by … Continue reading

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N.D.Ind.: “If six law enforcement officers testify credibly to a story that doesn’t make sense, is the Court bound to accept that testimony?” Yes.

“If six law enforcement officers testify credibly to a story that doesn’t make sense, is the Court bound to accept that testimony? That’s the question facing the Court on Defendant’s motion to suppress. Because the Court has no basis to … Continue reading

Posted in § 1983 / Bivens, Arrest or entry on arrest, Burden of proof, Franks doctrine | Comments Off on N.D.Ind.: “If six law enforcement officers testify credibly to a story that doesn’t make sense, is the Court bound to accept that testimony?” Yes.

CA10: Govt has to be shown to have property to be ordered to return it under Rule 41(g)

The district court lacked jurisdiction to order return of property under Rule 41(g) because it could not be shown that the government was in possession of the hard drive defendant sought return of. United States v. Toombs, 2023 U.S. App. … Continue reading

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E.D.N.Y.: What’s the burden under 18 U.S.C. § 1345 v. SW issuance? Preponderance or PC?

This is a patent action involving an AR-15 trigger mechanism that can convert the gun to a machine gun. The government got involved to enjoin it. The defendants seek a transfer to W.D.Tex. which is denied. The court addresses 18 … Continue reading

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M.D.Fla.: Geofence SW decided on GFE alone

In this Hobbs Act robbery case, ATF got a geofence warrant to attempt to isolate who was committing a string of robberies in the Tampa Bay area. Instead of even considering the merits, the court goes directly to the good … Continue reading

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IA: Dashcam video not conclusive evidence of justification for stop

The dashcam video of defendant’s stop wasn’t all that clear, and the trial court credited the officer’s testimony defendant drove some on the wrong side of the road at night in snowy conditions. That’s entitled to deference, as are reasonable … Continue reading

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DE: State failed in burden of proof on basis for stop

The state put on nothing at the suppression hearing to show that the stop was justified. Suppressed. State v. Skinner, 2023 Del. Super. LEXIS 96 (Feb. 10, 2023):*

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E.D.Ky.: Failure to cross-examine at trial on some contradictions from SW affidavit was not IAC

Defendant’s 2255 ineffective assistance of counsel claim in part challenged defense counsel’s failure to cross-examine over contradictions in a search warrant affidavit by the witness. The government doesn’t address this, and assuming it was defective performance, the court finds a … Continue reading

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Three on what the dashcam didn’t show

Just because the dashcam video doesn’t show the traffic violation doesn’t mean that it didn’t happen. The trooper testified that what he sees might be slightly different but still true. State v. Moore, 2023-Ohio-494, 2023 Ohio App. LEXIS 517 (4th … Continue reading

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WI: A description of a Harley in Wisconsin in April is generic and not RS

The description of the offending vehicle as a Harley in Wisconsin is so generic it can’t support a stop. “After all, Wisconsin is the home of Harley-Davidson, and it is one of, if not the most popular manufacturers of motorcycles … Continue reading

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IN: Mistake of law to an illegal search or seizure applies to the scope of the law, not whether it even exists

The mistake of law “defense” to an illegal search or seizure applies to the scope of the law, not whether it even exists. Here, it didn’t. White v. State, 2022 Ind. App. LEXIS 390 (Dec. 8, 2022). The specific characteristics … Continue reading

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D.Alaska: On reconsideration, govt revealed officer misconduct, and court finds him not credible

After defendant’s motion to suppress was denied, the government alerted the court and defense to an internal investigation of the state trooper involved just concluded where 43 instances of violation of policy and procedure were documented. The search here turned … Continue reading

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D.Minn.: Govt fails on its burden of proving GFE applies; no witnesses called

The search warrant for defendant’s cell phone lacked probable cause for lack of specificity. More importantly, the government failed in its burden of proof to show the good faith exception applies. United States v. Armstrong, 2022 U.S. Dist. LEXIS 207602 … Continue reading

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E.D.Cal.: Govt failed in its burden of proof on justification for protective sweep

The court finds, with the evidence in equipoise, the government didn’t meet its burden of showing the arrest happened inside defendant’s house or outside. This is critical, because the police did a protective sweep and used that to get a … Continue reading

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MA: Ptf stated claim for unjustified community caretaking entry to investigate alleged elder abuse

Plaintiff was caring for a 95-year-old retired priest. She stated a claim for a Fourth Amendment violation for a warrantless entry into her house, in part, under the community caretaking function without justification. Gallagher v. S. Shore Hosp., Inc., 2022 … Continue reading

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