Category Archives: Burden of pleading

DE: Mandamus can’t be used as interlocutory appeal of denial of motion to suppress

A petition for writ of mandamus can’t be used as an interlocutory appeal of denial of a motion to suppress. In re Taylor for A Writ of Mandamus, 2023 Del. LEXIS 400 (Dec. 5, 2023). Plaintiff sued under the Fourth … Continue reading

Posted in § 1983 / Bivens, Burden of pleading, Ineffective assistance, Motion to suppress | Comments Off on DE: Mandamus can’t be used as interlocutory appeal of denial of motion to suppress

OH11: Person seeking return of property seized need not provide actual evidence in the petition

In a petition for return of property seized from a business, it was only required to show a possessory interest and likelihood of return. An evidentiary quality response isn’t required. State v. Allen, 2023-Ohio-4032, 2023 Ohio App. LEXIS 3869 (11th … Continue reading

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IN: State could rely on alternative theory on appeal where record supports it

The state relied on inventory at trial and prevailed. On appeal it also relies on search incident. The record developed supports that, too. Cobb v. State, 2023 Ind. App. LEXIS 299 (Oct. 26, 2023). [In my state, it’s “right result, … Continue reading

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D.N.M.: Police entry into a fire damaged home after fire was out and it was “all clear” violated 4A

There was a kitchen fire in defendant’s home, and firefighters told the police that there were unsecured handguns in the house. A police aide entered the house without a warrant and took them. The government argues the house was abandoned … Continue reading

Posted in Administrative search, Burden of pleading, Emergency / exigency, Waiver | Comments Off on D.N.M.: Police entry into a fire damaged home after fire was out and it was “all clear” violated 4A

OR: State const. doesn’t bar checking for warrants during traffic stop

Officers are not prohibited under the state constitution from checking for outstanding warrants during a traffic stop, during a lull or not. There are valid safety and policy reasons for it. State v. Civil, 328 Or App 662, 2023 Ore. … Continue reading

Posted in Burden of pleading, Immigration arrests, Reasonable suspicion, State constitution | Comments Off on OR: State const. doesn’t bar checking for warrants during traffic stop

S.D.Ill.: Justification for a protective sweep remained despite 10 hour wait outside

Despite officers waiting outside for about ten hours and seeing no movement from inside, a protective sweep was still objectively reasonable on the totality. People were unaccounted for, and there was a gun and drugs seen from outside the door. … Continue reading

Posted in Burden of pleading, Probable cause, Protective sweep, Waiver | Comments Off on S.D.Ill.: Justification for a protective sweep remained despite 10 hour wait outside

PA: State obligated to raise all possible issues in defense of warrantless search in trial court

The state is obliged to raise whatever issues it can in defense of a warrantless search at the hearing. Piecemeal litigation by motion to reconsider must be avoided. Commonwealth v. Smith, 2023 PA Super 205, 2023 Pa. Super. LEXIS 482 … Continue reading

Posted in Burden of pleading, Prison and jail searches, Staleness | Comments Off on PA: State obligated to raise all possible issues in defense of warrantless search in trial court

CA6: Incriminating nature of gun was reasonably immediately apparent to officers

The incriminating nature of an AR-15 was immediately apparent to the officers. They don’t have to know that it’s contraband, just that it’s reasonably likely. On this record, that was shown. United States v. Grier, 2023 U.S. App. LEXIS 26077 … Continue reading

Posted in Arrest or entry on arrest, Burden of pleading, Plain view, feel, smell | Comments Off on CA6: Incriminating nature of gun was reasonably immediately apparent to officers

D.S.D.: Two anonymous tips about a car built upon one another and provided RS

Two anonymous tips about a car built upon one another and finding the car on the interstate was reasonable suspicion. United States v. Gonzalez, No. 422-CR-40119-KES, 2023 U.S. Dist. LEXIS 167068 (D.S.D. Sep. 15, 2023). Defendant was indicted for conspiring … Continue reading

Posted in Burden of pleading, Cell phones, Foreign searches, Informant hearsay, Reasonable suspicion | Comments Off on D.S.D.: Two anonymous tips about a car built upon one another and provided RS

TN: Def failed to specify the dispositive issue for appeal

Defendant failed to clearly specify the dispositive issue for a conditional plea of a search issue. State v. Herbison, 2023 Tenn. Crim. App. LEXIS 343 (Crim. App. Sep. 11, 2023)*:

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TX2: Merely stating there is a REP in a cell phone doesn’t make it a 4A argument

“In one sentence in this section of his brief, Nash also argues that courts have found that a cell phone user has a reasonable expectation of privacy in the user’s phone’s contents. Nash does not challenge the evidence that the … Continue reading

Posted in Airport searches, Burden of pleading, Plain view, feel, smell, Reasonable expectation of privacy | Comments Off on TX2: Merely stating there is a REP in a cell phone doesn’t make it a 4A argument

OH1: Automobile exception does not apply to a purse removed from vehicle before PC developed

“In this appeal, we are asked to consider the narrow application of the automobile exception to the Fourth Amendment’s warrant requirement: whether officers may, in the course of a car search, search a container held roughly 25 feet away from … Continue reading

Posted in Automobile exception, Burden of pleading, Qualified immunity, Seizure, Standing | Comments Off on OH1: Automobile exception does not apply to a purse removed from vehicle before PC developed

TN: Collective knowledge also applies to RS

Collective knowledge also applies to reasonable suspicion. State v. Hodge, 2023 Tenn. Crim. App. LEXIS 317 (Aug. 24, 2023). Defendant’s “certified question” for appeal was overbroad. State v. Beech, 2023 Tenn. Crim. App. LEXIS 313 (Aug. 24, 2023).* Defendant was … Continue reading

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D.Ariz.: No REP in shared folder on computer open on eMule program

The government’s “pre-search” of a shared folder on defendant’s computer available through eMule was not subject to a reasonable expectation of privacy and was reasonable. United States v. Johnson, 2023 U.S. Dist. LEXIS 146664 (D. Ariz. Aug. 21, 2023), adopting … Continue reading

Posted in Burden of pleading, Burden of proof, Computer and cloud searches, Curtilage, Ineffective assistance | Comments Off on D.Ariz.: No REP in shared folder on computer open on eMule program

D.S.D. & OH5: When challenging another court’s SW, it has to be filed with the papers for the court to rule

Defendant challenges the tribal search warrant as lacking probable cause and being vindictively obtained, the latter of which does not exist under Rule 41. He fails to include the warrant papers so the court can’t rule. United States v. Floyd, … Continue reading

Posted in Burden of pleading, Consent, Excessive force, Warrant papers | Comments Off on D.S.D. & OH5: When challenging another court’s SW, it has to be filed with the papers for the court to rule

D.D.C.: Second thoughts about unobjected to Facebook posts in 1/6 trial doesn’t mean govt violated particularity

1/6 defendants didn’t object to Facebook materials obtained by search warrant. In their motion for new trial they’re concerned with one entry in 14,000 pages that the government must have exceeded the warrant. “Even if these underdeveloped allegations held water, … Continue reading

Posted in Burden of pleading, Particularity, Reasonable suspicion, Waiver | Comments Off on D.D.C.: Second thoughts about unobjected to Facebook posts in 1/6 trial doesn’t mean govt violated particularity

OH5: Pickup of visitor parked on street could be searched with SW for premises where it was suspected of drug transactions there

Defendant’s pickup was parked on the street in front of another man’s house that was searched with a warrant. His truck was searched too, but wasn’t mentioned in the warrant. “We find the search of the truck was authorized by … Continue reading

Posted in Burden of pleading, Burden of proof, Probation / Parole search, Scope of search, Standing, Warrant execution | Comments Off on OH5: Pickup of visitor parked on street could be searched with SW for premises where it was suspected of drug transactions there

CA7: The remedy for an overbroad SW is a motion to suppress, not a motion to dismiss

An alleged overbroad email search warrant is pursued by a motion to suppress, not a motion to dismiss. “The remedy for such Fourth Amendment violations in a criminal proceeding is suppression of the evidence, not dismissal of the indictment or … Continue reading

Posted in Burden of pleading, Exclusionary rule, Motion to suppress | Comments Off on CA7: The remedy for an overbroad SW is a motion to suppress, not a motion to dismiss

CA2: GFE applies to particularity of SWs too

The good faith exception applies to particularity questions where the officer cannot reasonably be expected to question the scope of the warrant. United States v. Walker, 2023 U.S. App. LEXIS 11798 (2d Cir. May 15, 2023). “Given that a police … Continue reading

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SD: Def not in custody during DNA SW when asked basic questions

Despite language difficulties, defendant did speak some English, enough to refer to erection difficulties, and he never indicated he didn’t understand. He was not in custody for Miranda purposes when he was asked some basic questions and volunteered information while … Continue reading

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