Category Archives: Burden of proof

OR: Def disavowed consent issue in trial court, so he couldn’t argue it on appeal

Defendant disavowed the argument made on appeal in the trial court, and you just can’t do that. “Defendant failed to preserve his argument because he failed to provide the trial court with an objection, let alone ‘an explanation of his … Continue reading

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S.D.Ohio: Affidavit for SW judicially estopped govt to claim no standing

The affidavit for the search warrant alleged the house was defendant’s house. The government was judicially estopped from claiming otherwise in the proceeding without real evidence the affidavit was wrong. [I’ve been arguing this for years; see Treatise § 4.03.] … Continue reading

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NY4: Scope of search claim defaulted by not presenting it to trial court

A facial challenge to a search warrant is a question of law, and no hearing is required. On the application, probable cause was shown along with the CI’s reliability. Defendant’s claim the search exceeded the search warrant is defaulted for … Continue reading

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OH8: Failure to put the SW affidavit into evidence at suppression hearing waived def’s challenge

Defendant’s suppression motion made an attempt at a GPS and Franks challenge. After the hearing was over, the warrant and affidavit to procure it were not proffered for the record. This was waiver. State v. Mock, 2018-Ohio-268, 2018 Ohio App. … Continue reading

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D.N.M.: Govt’s failure to argue validity of scope of protective sweep before USMJ waived it

The government didn’t raise validity of the scope of the full protective sweep before the USMJ and waived it after the R&R. United States v. Salazar, 2018 U.S. Dist. LEXIS 10212 (D. N.M. Jan. 23, 2018). Defendant’s cell phone search … Continue reading

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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

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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

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