TX2: Defendant did not show warrantless arrest invalid; he has the burden

The defendant has the burden of showing that police conduct in this warrantless arrest case was unreasonable. State v. Woodard, 314 S.W.3d 86 (Tex. App. – Ft. Worth 2010) (2-1):

Proper police conduct is presumed. See Amador, 221 S.W.3d at 672-73. To suppress evidence because of an alleged Fourth Amendment violation, the defendant bears the initial burden of producing evidence that rebuts the presumption of proper police conduct. Id. (citing Russell v. State, 717 S.W.2d 7, 9 (Tex. Crim. App. 1986); Derichsweiler v. State, 301 S.W.3d 803, 808 (Tex. App.–Fort Worth, pet. filed); Morris v. State, 50 S.W.3d 89, 94 (Tex. App.–Fort Worth 2001, no pet.). The dissent appears to overlook the first prong of this presumption: a defendant must establish that (1) a search or seizure occurred (2) without a warrant. See Amador, 221 S.W.3d at 672; Davidson v. State, 249 S.W.3d 709, 717-18 (Tex. App.–Austin 2008, no pet.) (citing Russell, 717 S.W.2d at 9). Once the defendant has made this showing, the burden of proof shifts to the State, which is then required to establish that the search or seizure was conducted pursuant to a warrant or was reasonable. Id. at 673; Torres, 182 S.W.3d at 902; Ford, 158 S.W.3d at 492.

Here, the trial court erroneously applied the law to the facts in concluding that “Officer John Warner failed to articulate specific facts that supported a reasonable suspicion that [Woodard] had committed any criminal offense before [he] performed the investigative detention of Mr. Woodard on May 17, 2008.” [Emphasis added.] There is no evidence that Appellee was “seized” prior to Officer Warner asking Appellee to perform standardized field sobriety testing. Thus, we presume that up to the point that Officer Warner requested Appellee to perform field sobriety testing, “no intrusion upon constitutionally protected rights had occurred.” See Terry, 392 U.S. at 20 n.16, 88 S. Ct. at 1879 n.16 (holding that because the record was unclear “whether any … ‘seizure’ took place” before an officer initiated physical contact to conduct a search, the court assumed no violation of any constitutionally protected rights).

[How can a court put the burden on the defendant to show that a warrantless arrest is invalid when Fourth Amendment puts the burden on the government? Bumper v. North Carolina, 391 U.S. 543, 548 (1968). This court seems to conflate the burden of going forward and the burden of proof. The burden of going forward is satisfied by one sentence in a motion to suppress: “The defendant was subjected to a warrantless search (or arrest).”]

The question for probable cause is a fair probability that evidence would be found, and the affidavit in this unlawful export case established a fair probability evidence would be found in defendant’s offices. United States v. Piquet, 372 Fed. Appx. 42 (11th Cir. 2010) (unpublished).*

Defendant’s dropping a cup when talking to LEO was an abandonment because he had not been stopped at that point. United States v. Elbert, 2010 U.S. Dist. LEXIS 32943 (E.D. N.C. February 25, 2010).*

Defendant was found to have consented, and he did not show that he was under the influence of heroin and Xanax to make the consent invalid. United States v. Figueroa, 2009 U.S. Dist. LEXIS 126476 (S.D. Fla. December 22, 2009) (USMJ R&R), adopted United States v. Figueroa, 2010 U.S. Dist. LEXIS 33099 (S.D. Fla. April 5, 2010) (no reason shown for USDJ to reject USMJ’s credibility determination).*