Category Archives: Burden of pleading

D.Idaho: Broad conclusory motions to suppress should be summarily denied

Broad conclusory motions to suppress should be summarily denied. “The Government and the Court had no warning that Munguia-Lopez was going to challenge his own stop at the hearing. This Court does not look favorably on counsel filing motions with … Continue reading

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UT: IAC shown for not challenging dog alert

The initial dog alert here did not provide probable cause for search of defendant’s vehicle. Thus, defense counsel was ineffective for not pursuing a Fourth Amendment challenge. “In summary, based on the record before us, a motion to suppress the … Continue reading

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TX: Boilerplate in cell phone SW affidavit not unreasonable, but facts of PC must be shown too

Boilerplate language in a search warrant application for a cell phone isn’t inappropriate, but there must still be a factual showing of probable cause for search of the phone. State v. Baldwin, 2022 Tex. Crim. App. LEXIS 321 (May 11, … Continue reading

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IN: State const’l arguments have to be raised in trial court first

Defendant’s argument for a change in standing law under the state constitution that he should have the ability to challenge the search of another person’s person and clothing wasn’t raised below, so it’s waived. State v. Allen, 2022 Ind. App. … Continue reading

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AR: SW for evidence linking to a homicide in another county found clothes worn seen in video

In a homicide investigation, officers showed probable cause for defendant’s house for evidence of the murder where the victim was abducted, driven 75 miles, and her body dumped in another county. Defendant was on video surveillance where the abduction occurred, … Continue reading

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CA9: Private searcher mimicking her computer search for police was reasonable

Defendant’s former girlfriend found child pornography on his computer. She took the computer to the Reno sheriff’s office, and the police there had her show them what she did and go no farther. This was admitted by the government to … Continue reading

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N.D.Ga.: RS still existed on I-85 after apparent hand-to-hand transaction in front of stash house

Defendant’s doing a hand-to-hand transaction from a car in front of a stash house was still reasonable suspicion when the officers caught up with him on I-85 after a license plate reader found the car after they lost sight of … Continue reading

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TX4: No REP in totaled car at the wrecker yard

Defendant totaled his car in an accident. The black box evidence was sought by warrant, but the court holds that defendant effectively abandoned the car to the wrecking yard. Vitela v. State, 2022 Tex. App. LEXIS 2759 (Tex. App. – … Continue reading

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E.D.Mo.: Empty sandwich bag in car not subject to plain view; incriminating nature not immediately apparent

The government failed to establish reasonable suspicion for defendant’s stop on an anonymous tip where nothing of substance was furnished contrary to Navarette. Moreover, it wasn’t immediately apparent an empty sandwich bag in the car was incriminating for plain view. … Continue reading

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NM: Motion to suppress checkpoint stop too general to put state on notice

“We conclude Defendant’s motion was insufficiently particular to alert the metropolitan court or State that the grounds for suppressing evidence related to the checkpoint’s illegality.” “Defendant’s motion, rather, was based upon the State lacking reasonable suspicion to detain Defendant. The … Continue reading

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D.C.Cir.: Admin. law: 4A claims must be brought at agency level first

In an action before the Board for Correction of Naval Records, the service member had to raise his Fourth Amendment claim before the agency or it is waived, which is what happened here. McPherson v. Del Toro, Sec’y of the … Continue reading

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S.D.N.Y.: Video of def and cell phone at scene of crime is PC for phone

Defendant with his cell phone in hand was at the scene of a shooting as shown by surveillance video. That’s probable cause for the phone. United States v. King, 2022 U.S. Dist. LEXIS 53647 (S.D.N.Y. Mar. 24, 2022). When the … Continue reading

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Not being candid about the SW or affidavit in the motion to suppress isn’t good for the defense

“Moreover, even if Defendant is correct that SAPD lacked probable cause to search his vehicle, a motion to suppress is unlikely to succeed. Defendant focuses on one paragraph of the search warrant affidavits and ignores the other four paragraphs detailing … Continue reading

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CA4: If you’re going to call the search “egregious,” at least cite a case

“Dr. Dong next asserts, without citation to case law, that ‘[e]gregious procedural deficiencies in the investigation, prosecution, trial and sentencing’ occurred such that his convictions and sentence must be reversed. Opening Br. 18. He first points to alleged deficiencies in … Continue reading

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OH3: Where PC exists as to a car, use of a drug dog before the physical search not unreasonable

Once the officer smells marijuana, it violates no law to use a drug dog first rather than just proceeding to search the car. State v. Jones, 2022-Ohio-561, 2022 Ohio App. LEXIS 487 (3d Dist. Feb. 18, 2022). (The less intrusive … Continue reading

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S.D.N.Y.: A reasonably conducted eviction is not a 4A violation

“Most eviction-type seizures do not violate the Fourth Amendment. Thomas v. Cohen, 304 F.3d 563, 574 (6th Cir. 2002) (citing Soldal v. Cook County, 506 U.S. 56, 71, 113 S. Ct. 538, 121 L. Ed. 2d 450 (1992)). Seizing an … Continue reading

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N.D.Ill.: A “network of pole cameras” doesn’t violate 4A

Five pole cameras were trained on defendant’s house. A “network of pole cameras” isn’t a Fourth Amendment violation. See United States v. Tuggle, 4 F.4th 505 (7th Cir. 2021). Moreover, he does not rebut the presumption of good faith with … Continue reading

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OH4: That stop was with RS isn’t arguing that it was continued with RS, and that’s waiver

Defendant started with the argument that the stop lacked reasonable suspicion, but he did not argue that the stop was continued with reasonable suspicion until the appeal. Failure to raise it that way in the trial court was waiver. State … Continue reading

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CA11: Failure to plead facts of standing or REP requires denial of motion to suppress

“If a defendant fails to plead sufficient facts to show a reasonable expectation of privacy, ‘a trial court may refuse a defendant’s request for a suppression hearing’ and deny his motion to suppress.” United States v. Robinson, 2022 U.S. App. … Continue reading

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CA9: Govt “tucked” independent source argument into another and then abandoned it for years; not fully developed

The government’s independent source argument was (1) tucked into another argument and then not fully developed, and (2) then essentially abandoned for years during the litigation. It was not fully developed. United States v. Osborne, 2022 U.S. App. LEXIS 2682 … Continue reading

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