Category Archives: Burden of proof

E.D.Wis.: Gov’t didn’t show abandonment of package by sender because of error in address where recipient refused it

The USPS Postal Inspector did not act reasonably in determining that the package with methamphetamine was abandoned. The recipient disclaimed any interest in it, and the investigation into the sender, who would still have an interest in it, was woefully … Continue reading

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M.D.Pa.: Def’s version in pro se motion to suppress used against him in third on credibility

Defendant files three motions to suppress. The first one was pro se and never mentioned that his stop was pretextual, that the headlights were actually on, and the stop was without reasonable suspicion. A later motion to suppress challenged the … Continue reading

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WA: Implied consent law now includes testing for THC influenced driving, and it’s constitutional

The implied consent law includes testing for THC concentration, and it is constitutional. Kandler v. City of Kent, 2017 Wash. App. LEXIS 1176 (May 15, 2017). Officers adequately explained date discrepancies in the paperwork and use of a search warrant … Continue reading

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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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