Category Archives: Burden of proof

CA9: Where there are two grounds to support the search, appeal of only one means affirmance

There were two grounds on which defendant’s suppression motion could have been denied. The fact the court didn’t give defendant an opportunity to respond to one was a moot point. In addition, even if the motion had been granted, the … Continue reading

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S.D.N.Y.: Issue preclusion: Same search litigated in NJ state courts in 2014 and def lost; can’t relitigate here. Besides, he’d lose on merits, too

Defendant was charged in New Jersey as a result of the same search as here. He fully litigated in state court and lost, and appealed and lost. That qualifies for issue preclusion in federal court in NYC because he had … Continue reading

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TN: Police passing “no trespassing” signs on rural land doesn’t prevent a knock-and-talk

Citing numerous cases, the Tennessee Supreme Court holds that officers passing “no trespassing” signs has no talismanic authority to make a knock-and-talk unreasonable. The overwhelming weight of authority so holds. Police came to defendant’s front door, knocked, and he opened … Continue reading

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WI: Confrontation clause does not apply to suppression hearings

The confrontation clause is a trial right, so does not apply to suppression hearings. So the use of a deceased police officer’s recorded statement at a suppression hearing did not violate the confrontation clause. State v. Zamzow, 2017 WI 29, … Continue reading

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D.N.M. allows motion to reconsider under implied authority and denies it

On defendant’s motion to reconsider the prior denial of the motion to suppress, the new evidence that defendant has doesn’t change the outcome. United States v. Thayer, 2017 U.S. Dist. LEXIS 51255 (D.N.M. April 3, 2017).* The motion to reconsider … Continue reading

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OH10: Hearsay of one officer about another not inadmissible in suppression hearing about RS

The trial court did not err in relying in part on hearsay testimony by one officer about another to find that there was reasonable suspicion for defendant’s detention. State v. Box, 2017-Ohio-1138, 2017 Ohio App. LEXIS 1165 (10th Dist. March … Continue reading

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W.D.Okla: Def bears burden of proving “private search” was by government actor and did; suppressed

Defendant has sufficient interest in the business from which a thumb drive with data was taken and turned over to ICE officers at the U.S. Embassy in Panama. (The court acknowledges that it’s not “standing,” per se, but it continues … Continue reading

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MO: A body between apartments justified an entry to see if there were other victims

Police get a call about women screaming and yelling and a body between two buildings. They show up and circumstances connect them to an apartment. A community caretaking function search for another victim is proper. State v. Shegog, 2017 Mo. … Continue reading

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TX14: When trial court finds two theories, defendant has to argue both on appeal or he defaults one

The state raised alternate theories and both were found by the trial court. The defendant didn’t put on a defense to the state’s search incident argument. On appeal, he didn’t argue the search incident issues and defaulted them. Mixon v. … Continue reading

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TN: Def’s post-conviction burden is to show that the motion to suppress would have prevailed

On a post-conviction petition that defense counsel was ineffective, the defense has to put on proof to show that there is some reason to believe that the motion to suppress would have been granted if it had been pursued at … Continue reading

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