Category Archives: Burden of proof

IN: Failure to prove dept’l inventory policy fatal to inventory search; officer calling search one thing but DA not arguing it is waiver

The state didn’t support the departmental inventory policy at trial, and that was error. Also, what the officer calls a search (here “search incident”) the prosecutor didn’t, and that argument was waived for appeal. Smith v. State, 2019 Ind. App. … Continue reading

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D.D.C.: Post-trial suppression motion denied for lack of showing of merit

An attempt at a post-trial suppression motion in a motion for new trial was denied where the defense couldn’t show any merit to the motion in the first place. United States v. Baylor, 2019 U.S. Dist. LEXIS 129708 (D.D.C. Aug. … Continue reading

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CA1: Standing can’t be based on an untranslated document to put into evidence; even in D.P.R.

Defendant’s claim of standing in the home of another depends upon a Spanish language document [in PR federal court where everyone is bilingual] that was untranslated for the judge [and apparently not for appeal]. Therefore, his standing argument fails. But … Continue reading

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D.N.J.: Presentation of fake driver’s license to get car from impound after alleged unlawful seizure was new crime and attenuated

Defendant’s presentation of a fake driver’s licenses to recover his car would not be suppressed. The argument that it is connected to defendant’s alleged unlawful seizure of the car fails because it was attenuated. United States v. Minaya, 2019 U.S. … Continue reading

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TN: Without affidavit for SW being in record, search issues waived

“Because the affidavit is not part of the record and because the Defendant includes no argument regarding the validity of the search warrant, we consider any challenge to the search conducted pursuant to the search warrant waived.” State v. Green, … Continue reading

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IN: Petition for return of firearms seized granted; state’s evidence too stale to carry burden

In a petition for return of firearms seized from an alleged dangerous person, the state didn’t put on proof of anything recent, so the petition should have been granted. Redington v. State, 2019 Ind. App. LEXIS 146 (Apr. 5, 2019). … Continue reading

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WA: It’s defendant’s burden to show a seizure occurred

“An appellant making an unconstitutional seizure claim has the burden of proving that a seizure occurred. … [¶] Here, Yang consented to Koster’s entry. Throughout their time in the house, Lucas and Koster told Ho what they were doing. They … Continue reading

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Cal.2: SWs must be executed reasonably, and facts determine who has the burden of proof

A search warrant must be executed reasonably, and it depends on which side has knowledge of what for the burden of proof. Here, the issue involves a blood draw at a hospital, and defendant has access to that information, and … Continue reading

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OH5: To prove GFE doesn’t apply, the defense has to show bad faith [never mind that the burden is on the govt in GFE]

Officers could conduct a protective sweep when executing a search warrant. “In the case at hand, there was no testimony regarding bad faith on part of the officers who searched the residence where Appellant was hiding.” State v. Davis, 2018-Ohio-4368, … Continue reading

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OH8: State had to argue plain view to trial court to argue it on appeal

The state’s plain view argument wasn’t pressed in the trial court, so it can’t be a basis for appeal. Even on the merits, the state loses because the stop was invalid, and the detention unreasonable all before the alleged plain … Continue reading

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N.D.Ohio: Parole officers’ clinical reports didn’t have any of the added color at the suppression hearing, so the court doesn’t credit their testimony

“Based upon the totality of the circumstances and the Court’s assessment of the credibility of the parole officers, the Court finds that the [parole authority] lacked reasonable suspicion to search Neff’s cell phone. The results of the search, therefore, must … Continue reading

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CA10: You can’t tell the court it needs to apply the independent source case law a certain way and then complain on appeal that it did what you asked

This case started with hotel housekeeping coming in to clean a room and seeing obvious drug paraphernalia. The police were called, and they were shown. A search warrant was prepared showing probable cause to connect defendants to the room by … Continue reading

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