Category Archives: Burden of proof

W.D.Ky.: Motion to reconsider denial of motion to suppress only raised a trial issue, not a suppression issue, so denied

Defendant’s motion to reconsider the prior denial of a motion to suppress is denied because he raises essentially only an issue for trial as to where a gun was found, not to suppress evidence. United States v. Keeling, 2018 U.S. … Continue reading

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CA10: Scope of consent to search has to be raised in the trial court

The issue of scope of a consent search has to be presented to the trial court to be preserved. This wasn’t. United States v. Vargas, 2017 U.S. App. LEXIS 26869 (10th Cir. Dec. 28, 2017). There is no right to … Continue reading

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NY3: Failure to raise scope of consent to search in trial court is waiver

The car defendant back seat passenger was in was stopped for a traffic violation, and there was a furtive movement by the front seat passenger just before the vehicle came to a stop. The driver said they were going to … Continue reading

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OR: When the state argues a stop was continued with RS, it has the burden of proof and here it failed

Defendant was stopped on a bicycle for a headlight violation of what was likely a mixed motive stop because he was carrying a pillow case and that suggested residential burglary. The stop was conceded to be valid, but the continuation … Continue reading

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IL: After losing suppression motion, state asserted lack of standing in a motion to reconsider, and it’s too late

The state has the burden of alleging defendant didn’t have standing, and here it didn’t do so until a motion to reconsider claiming it was the trial court’s error of law. To succeed on a motion to reconsider, the state … Continue reading

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CA1: It was def’s burden to show guest standing and he failed

Defendant put on no proof of how long he was in another’s hotel room to claim standing in the room. The district court inferred, without much support, that he slept there for some brief period of time, and that’s not … Continue reading

Posted in Burden of proof, Reasonable expectation of privacy, Standing | Comments Off

E.D.Va.: Circuit authority doesn’t require SW for CSLI, so there’s no point in waiting for Carpenter

CSLI without a search warrant is permitted under the law of this circuit, so there’s no point in waiting for Carpenter to be decided. [Without explicitly saying it, Davis good faith exception will apply.] United States v. Simmons, 2017 U.S. … Continue reading

Posted in Burden of proof, Cell site location information, Good faith exception | Comments Off

CA9: Failure to argue curtilage was violated in district court barred argument on appeal

Viewing photographs of the scene, the district court could conclude that the officers could see defendant with methamphetamine in his garage. “Tran did not argue below that the officers unlawfully entered the curtilage of Chong’s home and therefore waived this … Continue reading

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KY: Confrontation clause doesn’t apply in suppression hearings

The Sixth Amendment’s confrontation clause doesn’t apply to a suppression hearing to get the typical CI on the stand to attack his reliability. [Now, if the CI was a material witness to the case under Roviaro, likely so.] Hawkins v. … Continue reading

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MO: Where 2 SWs authorize search, both have to be suppressed for def to prevail; challenging only one is moot

There were two search warrants authorizing the search of defendant’s computers for child pornography. He challenged the second but not the first, and that makes his argument moot. State v. Cato, 2017 Mo. App. LEXIS 1298 (Dec. 12, 2017). A … Continue reading

Posted in Burden of proof, Computer searches, Standards of review | Comments Off

IL: When lack of PC for arrest is raised, the state can rely on hearsay to establish it

When the defendant challenges probable cause for arrest, hearsay is admissible to show it. People v. Horine, 2017 IL App (4th) 170128, 2017 Ill. App. LEXIS 743 (Dec. 5, 2017):

Posted in Arrest or entry on arrest, Burden of proof, Probable cause | Comments Off

CA2: In a § 1983 case alleging lack of PC from omission of information to issuing magistrate, it’s ptf’s burden

In this § 1983 case there was probable cause for issuance of an animal abuse warrant. To argue the probable cause was tainted by omission of information, plaintiff carries the burden, and here she failed. Kanciper v. Lato, 2017 U.S. … Continue reading

Posted in § 1983 / Bivens, Burden of proof, Franks doctrine | Comments Off