Category Archives: Burden of proof

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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OH2: Putting wrong city of bank robbery in affidavit was mere clerical error that could be overlooked

There was probable cause on the totality of the information provided the issuing magistrate for issuance of a search warrant for bank robber. The error as to the city of the robbery was a mere clerical error that could be … Continue reading

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W.D.Pa.: To make an effective attack on a SW affidavit, explain yourself and don’t leave it to the court to try to do it for you

Yes, there were inconsistencies in the informant hearsay, but the defendant doesn’t help the court in what that means. “Thus, Defendant’s hearsay attacks fail to draw the court’s attention to any problem in the magistrate judges’ analysis.” There was double … Continue reading

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E.D.Ky.: Govt didn’t exceed NCMEC’s private search

NCMEC was a private entity and not a government actor. The government didn’t exceed the private search. United States v. Kendall, 2019 U.S. Dist. LEXIS 192442 (E.D. Ky. Nov. 6, 2019). Defendant had no reasonable expectation of privacy in an … Continue reading

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NY2: Def has right of access to SW affidavit to attempt to controvert it

Defendant filed his motion to suppress in the blind because didn’t have access to the affidavit for the search warrant. It was denied without a hearing. Remanded: He gets to see it to try to controvert it. People v. Lambey, … Continue reading

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TX10: The search and seizure issue in the trial court needs to be the same as the one presented on appeal or it’s waived

The search and seizure issue in the trial court needs to be the same as the one presented on appeal or it’s waived. “Villareal’s complaint on appeal that the trial court erred in denying Villareal’s motion to suppress as to … Continue reading

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WA: Breath for BAC is not subject to search incident doctrine

Defendant was arrested for another reason, and police did a search incident of his breath for DUI. That’s not a proper purpose. City of Vancouver v. Kaufman, 2019 Wash. App. LEXIS 2616 (Oct. 15, 2019). The search warrant appears based … Continue reading

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