{"id":4040,"date":"2011-01-07T09:00:41","date_gmt":"2010-04-07T09:10:43","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2010-04-07T09:10:43","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=4040","title":{"rendered":"TX2: Defendant did not show warrantless arrest invalid; he has the burden"},"content":{"rendered":"

The defendant has the burden of showing that police conduct in this warrantless arrest case was unreasonable. State v. Woodard<\/a>, 314 S.W.3d 86 (Tex. App. \u2013 Ft. Worth 2010) (2-1):<\/p>\n

Proper police conduct is presumed. See Amador<\/a>, 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<\/a>, 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.<\/p>\n

Here, the trial court erroneously applied the law to the facts in concluding that \u201cOfficer 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.\u201d [Emphasis added.] There is no evidence that Appellee was \u201cseized\u201d 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, \u201cno intrusion upon constitutionally protected rights had occurred.\u201d See Terry, 392 U.S. at 20 n.16, 88 S. Ct. at 1879 n.16 (holding that because the record was unclear \u201cwhether any … \u2018seizure\u2019 took place\u201d before an officer initiated physical contact to conduct a search, the court assumed no violation of any constitutionally protected rights).<\/p><\/blockquote>\n

[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<\/a>, 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).”]<\/p>\n

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\u2019s offices. United States v. Piquet<\/a>, 372 Fed. Appx. 42 (11th Cir. 2010) (unpublished).*<\/p>\n

Defendant\u2019s 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).*<\/p>\n

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\u2019s credibility determination).*<\/p>\n","protected":false},"excerpt":{"rendered":"

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