Category Archives: Burden of proof

KY: Confrontation clause doesn’t apply in suppression hearings

The Sixth Amendment’s confrontation clause doesn’t apply to a suppression hearing to get the typical CI on the stand to attack his reliability. [Now, if the CI was a material witness to the case under Roviaro, likely so.] Hawkins v. … Continue reading

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MO: Where 2 SWs authorize search, both have to be suppressed for def to prevail; challenging only one is moot

There were two search warrants authorizing the search of defendant’s computers for child pornography. He challenged the second but not the first, and that makes his argument moot. State v. Cato, 2017 Mo. App. LEXIS 1298 (Dec. 12, 2017). A … Continue reading

Posted in Burden of proof, Computer searches, Standards of review | Comments Off

IL: When lack of PC for arrest is raised, the state can rely on hearsay to establish it

When the defendant challenges probable cause for arrest, hearsay is admissible to show it. People v. Horine, 2017 IL App (4th) 170128, 2017 Ill. App. LEXIS 743 (Dec. 5, 2017):

Posted in Arrest or entry on arrest, Burden of proof, Probable cause | Comments Off

CA2: In a § 1983 case alleging lack of PC from omission of information to issuing magistrate, it’s ptf’s burden

In this § 1983 case there was probable cause for issuance of an animal abuse warrant. To argue the probable cause was tainted by omission of information, plaintiff carries the burden, and here she failed. Kanciper v. Lato, 2017 U.S. … Continue reading

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MA: Search of vehicle outside territorial jurisdiction of officers was void; inevitable discovery rejected

The informant hearsay satisfied Aguilar-Spinneli and thus showed probable cause. The search incident of defendant’s person was thus justified. The search of a car in an adjoining town was unreasonable because there was no statutory authorization for it under state … Continue reading

Posted in Burden of proof, Reasonableness, Search incident | Comments Off

MD: Def agreed to postpone suppression hearing until trial and then didn’t bring it up; invited error and not preserved

Defendant failed to preserve his Fourth Amendment claims for appeal. You don’t get a hearing just by asking. He didn’t make a proffer in his Franks motion which was enough to deny it. Then, whatever issue was left, the defense … Continue reading

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AZ: State didn’t argue GFE and court gives it a pass

The state didn’t raise the good faith exception in the trial court, but the court applies the “we can affirm on any ground” rule to apply it anyway. State v. Weakland, 2017 Ariz. App. LEXIS 202 (Nov. 28, 2017):

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OR: State has burden of pleading and proof on attenuation, and here it failed

The state had the burden and failed to prove attenuation between the stop and unreasonable search and finding the evidence. It did not raise the issue to preserve it. [This was submitted 33 months ago after remand from Oregon Supreme … Continue reading

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NY1: Suppression of firearm in criminal case wasn’t collateral estoppel in civil case where ptf didn’t offer any evidence

Suppression of a firearm in the criminal court was not collateral estoppel to a civil case for false arrest, particularly where plaintiff offered no evidence at all. Davidson v. City of New York, 2017 NY Slip Op 08313, 2017 N.Y. … Continue reading

Posted in § 1983 / Bivens, Burden of proof, Immigration checkpoints, Reasonable suspicion | Comments Off

D.Minn.: Govt pinned its vehicle search on lack of standing and lost, so vehicle search suppressed; house search, however, shown to be by consent

Even though somebody else owned the van, defendant was a regular user and that gave him standing. At the time of the seizure, it had broken down, and he used it then for storage. The government failed to show any … Continue reading

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CA3: Citation or summons is not an “arrest” in common usage or in the single arrest situations in application of the U.S.S.G.

A citation or summons is not an “arrest” in common usage or in the single arrest situations in application of the U.S. Sentencing Guidelines. United States v. Ley, 2017 U.S. App. LEXIS 23637 (3d Cir. Nov. 22, 2017). Defendant didn’t … Continue reading

Posted in Arrest or entry on arrest, Burden of proof | Comments Off

CA8: Def failed to show omission of CI’s background would have vitiated PC

“Claybron argues that the omission of the confidential informant’s background information weighed so heavily on her credibility that, had it been considered, the warrant would not have issued. ‘We review the trial court’s findings of fact for clear error and … Continue reading

Posted in Burden of proof, Franks doctrine, Informant hearsay | Comments Off