Category Archives: Burden of proof

TX: Even if suppression motion is made in trial, state bears burden on a warrantless search

Whether a motion to suppress is filed pretrial or during trial, if the search is shown to be warrantless, the burden shifts to the state to prove the legality of the warrantless search. White v. State, 2018 Tex. Crim. App. … Continue reading

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CA7: “This is a hornbook example of how to waive an argument on appeal.”

“This is a hornbook example of how to waive an argument on appeal.” The search issue presented on appeal was never presented to the trial court. “[P]arties cannot conjure up brand new legal theories on appeal like this. Failing to … Continue reading

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CO: Voluntariness of consent is proved by a preponderance of the evidence, not by clear and convincing evidence

Voluntariness of consent in Colorado is proved by a preponderance of the evidence, not by clear and convincing evidence. People v. Delage, 2018 CO 45, 2018 Colo. LEXIS 435 (May 30, 2018). The CI gave probable cause to stop defendant … Continue reading

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KY: The objective evidence showed voluntary consent on totality; trial court erred in finding no consent

Defendant had a head injury and couldn’t remember the accident. Still, she was lucid when the officer talked to her, and she objectively consented on the objective facts. Her subjective belief wasn’t important. The trial court clearly erred in finding … Continue reading

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CA3: Failure to pay bench warrant justified arrest even if state law permitted pay off in lieu of arrest

There was, in fact, a bench warrant for plaintiff for FTA for failure to pay. The fact state law optionally permitted a pay off in lieu of arrest doesn’t make the arrest violate the Fourth Amendment because there was a … Continue reading

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IL: Direct appeal record isn’t adequate to determine IAC claim on failure to litigate consent search

The record doesn’t show the reason for waiving a Fourth Amendment claim against a consent search and whether a motion to suppress would have been granted if litigated. A collateral proceeding is the place to do it. People v. Williamson, … Continue reading

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OH12: Def’s claim judge didn’t sign SW has zero evidentiary support

The defendant contended that the judge’s signature on the search warrant was false. The only testimony at the suppression hearing was that the judge signed it at home. The evidence supports the trial court’s finding. State v. Clayton, 2018-Ohio-1777, 2018 … Continue reading

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VA: Challenge to protective sweep is not a PC challenge, so PC challenged waived for appeal

Defendant’s search challenge was to a protective sweep, but not to the probable cause for the search warrant. That was a waiver of the probable cause issue. Commonwealth v. Smith, 2018 Va. App. LEXIS 115 (May 1, 2018); Commonwealth v. … Continue reading

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AR: State’s failure to get ruling on GFE below bars that argument on appeal; statute on BAC penalties violates Birchfield

Arkansas’s refusal to submit to a BAC test has criminal penalties, and it violates the Fourth Amendment. The trial court’s finding of voluntary consent was decided without an evidentiary hearing and is clearly erroneous. The state’s failure to get a … Continue reading

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D.Neb.: The gov’t put def on notice standing was an issue, and def didn’t respond with proof; no standing

The government argued no standing. “Despite being on notice that standing was an issue, Defendant did not introduce evidence at the suppression hearing to establish his relationship to the property searched in this case.” Going to the merits anyway, defendant … Continue reading

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S.D.Ohio: This SW affidavit was adequate and different than co-def’s SW affidavit where it was suppressed

The affidavit for the search warrant as to this defendant adequately demonstrated probable cause. The fact the codefendant’s search warrant lacked probable cause isn’t binding on this search warrant. United States v. Damondo, 2018 U.S. Dist. LEXIS 57204 (S.D. Ohio … Continue reading

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TX1: Search incident and inventory invalid for failing to signal; as to inventory, the inventorying officer is a necessary witness

A drug officer called a patrol officer to stop defendant. After he failed to promptly signal a turn, he was stopped, handcuffed, and his car was searched. “The search of Appellant’s vehicle incident to his arrest for failing to signal … Continue reading

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