The CI was corroborated in significant part, and the CI had a good track record, so the stop was justified by that and the fact the registration expired. A drug dog was used on the vehicle, and the defendant has the burden of showing the drug dog was unqualified. United States v. Nguyen, 2010 U.S. Dist. LEXIS 59455 (D. Utah June 15, 2010).*<\/p>\n
Note:<\/strong> This is just so fundamentally wrong, and I am shocked, shocked that a judge can still be that obtuse in 2010. (See this post from May<\/a> on the same issue where a federal judge granted a motion to reconsider after applying the wrong burden of proof at the government’s request. “I’m from the government, and I’m here to help you.”) <\/p>\n Let me say it again for the Fourth Amendment impaired in the judiciary and government:<\/p>\n The government always<\/em> bears the burden of proof on the merits of any warrantless search. See this chain of citations from this case, which shows that the Tenth Circuit may have it wrong in 1994: this case only cites United States v. Clarkson<\/a>, 551 F.3d 1196, 1202-03 (10th Cir. 2009), but that says nothing. It, in turn, cites United States v. Moore<\/a>, 22 F.3d 241 (10th Cir. 1994), which states: “The proponent of a motion to suppress bears the burden of proof. Rakas v. Illinois<\/a>, 439 U.S. 128, 130-31 n. 1, 99 S.Ct. 421, 423-24, 58 L.Ed.2d 387 (1978); United States v. Carr<\/a>, 939 F.2d 1442, 1446 (10th Cir.1991).” Rakas<\/a>‘s note 1 just says that the defendant has to show standing to get to the merits of the search claim. See United States v. Matlock<\/a>, 415 U.S. 164, 177 n.14 (1974):<\/p>\n There was an inadvertence in articulating the applicable burden of proof, but it seems to have been occasioned by a similar inadvertence by the Government in presenting its case. In any event, the controlling burden of proof at suppression hearings should impose no greater burden than proof by a preponderance of the evidence. See Lego v. Twomey, 404 U. S. 477, 488-489 (1972). We do not understand the Government to contend that the standard employed by the District Court was in error, and we have no occasion to consider whether it was.<\/p><\/blockquote>\n Standing is one thing, the Fourth Amendment merits are another. Standing is a question of going forward, just like saying “I was the target of a warrantless search of my car, and I have standing because it is my car.” It’s that simple. When the defendant shows standing, the burden then shifts to the government to support the merits of the warrantless search. See, e.g., United States v. Jeffers<\/a>, 342 U.S. 48, 51 (1951):<\/p>\n The Fourth Amendment prohibits both unreasonable searches and unreasonable seizures, and its protection extends to both “houses” and “effects.” Over and again this Court has emphasized that the mandate of the Amendment requires adherence to judicial processes. See Weeks v. United States<\/a>, 232 U. S. 383 (1914); Agnello v. United States<\/a>, 269 U. S. 20 (1925). Only where incident to a valid arrest, United States v. Rabinowitz<\/a>, 339 U. S. 56 (1950), or in “exceptional circumstances,” Johnson v. United States<\/a>, 333 U. S. 10 (1948), may an exemption lie, and then the burden is on those seeking the exemption to show the need for it, McDonald v. United States<\/a>, 335 U. S. 451, 456 (1948). In so doing the Amendment does not place an unduly oppressive weight on law enforcement officers but merely interposes an orderly procedure under the aegis of judicial impartiality that is necessary to attain the beneficent purposes intended. Johnson v. United States<\/a>, supra. Officers instead of obeying this mandate have too often, as shown by the numerous cases in this Court, taken matters into their own hands and invaded the security of the people against unreasonable search and seizure.<\/p><\/blockquote>\n This is settled law for over 60 years. Are you guys new at this?<\/p>\n Finally, the drug dog’s reliability is generally satisfied by a few words from the officer about training, and the burden shifts to the defendant to attempt to rebut, say by the number of false positives. See, e.g., United States v. Sundby<\/a>, 186 F.3d 873, 876 (8th Cir. 1999):<\/p>\n A dog\u2019s positive indication alone is enough to establish probable cause for the presence of a controlled substance if the dog is reliable. To establish the dog\u2019s reliability, the affidavit need only state the dog has been trained and certified to detect drugs. An affidavit need not give a detailed account of the dog\u2019s track record or education.<\/p><\/blockquote>\n (See first here<\/a>; it’s essentially Brady, but not all courts would go that far<\/a>. See here<\/a>. Search “dog reliability” and “dog training” and “false positives” for more.)<\/p>\n","protected":false},"excerpt":{"rendered":" b2evALnk.b2WPAutP Continue reading