Category Archives: Burden of proof

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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NJ: Vehicle SW doesn’t sanitize the prior illegal stop or shift the burden to defense

A later issued search warrant doesn’t retroactively justify a stop the defense showed to be without a legal basis. The state carried the burden of proof throughout, and it could not shift the burden to the defense by the issuance … Continue reading

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N.D.Ohio: Affidavit for SW didn’t support def’s claim of standing

Defendant relied on the affidavit for search warrant as showing his standing, but it didn’t resolve the question, so he fails in his burden of proof and lacks standing. The government showed nexus in the 61 page affidavit for residences … Continue reading

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Army: Specific issue of using computer to aid iPhone search waived by not presenting to trial court

On appeal defendant conceded the lawfulness of the seizure of his iPhone. Army investigators allegedly illegally seized a computer as well. All the trial court litigation never raised the question of the use of the computer, too, so that’s waived. … Continue reading

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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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