Motion to reconsider motion to suppress is granted and motion to suppress granted. The court erroneously put the burden of proof on the defendant, at the government\u2019s request, to prove that the warrantless search was unreasonable. United States v. Tompkins, 2009 U.S. Dist. LEXIS 126944 (C.D. Cal. November 2, 2009):<\/p>\n
It is fundamental to our system of criminal justice that the Government must justify the searches or seizures it conducts, either by seeking a warrant based upon probable cause or by proving that it has acted lawfully pursuant to an exception to the warrant requirement. Requiring the defendant whose Fourth Amendment rights have allegedly been violated to prove the absence of a lawful basis for the search or seizure would flip the Fourth Amendment on its head.<\/p>\n
Bearing this fundamental principle in mind, the Court must now answer the question set forth at the outset: on a motion to suppress evidence arising from a Terry stop where the evidence is in equipoise, who bears the ultimate burden of proof? The Government. It is the Government’s burden to prove by a preponderance of the evidence that the officer conducting the stop had a reasonable and articulable suspicion that the defendant was engaged in criminal activity. See Terry<\/a>, 392 U.S. at 30; see also United States v. Matlock<\/a>, 415 U.S. 164, 177 (1974) (referring to the government’s burden on a motion to suppress as a preponderance). In other words, in the event of a tie, the defendant must prevail.<\/p>\n
The Court therefore concludes that the Government has not satisfied its burden of establishing that it is more probably true than not that Defendant failed to stop at the stop sign. As a result, Officer Vazquez’s seizure of Defendant was not justified.<\/p><\/blockquote>\n
Practice Pointer:<\/strong> Every once in a while, the government leads a court into error by arguing the wrong burden of proof–see e.g., here<\/a> and here<\/a>. Aside from the fundamental mistake is the problem with a judge or an appellate panel being so government-oriented that they fall for it without thinking. Consequently, it underscores that defense counsel cannot assume the court knows what the burden of proof is. Therefore, in every case, if the burden is on the government, say so in the motion to suppress and cite something.<\/strong><\/p>\n","protected":false},"excerpt":{"rendered":"
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