Category Archives: Burden of pleading

S.D.Ill.: When moving to suppress “data” one has to be specific

Defendant’s motion to suppress “data” and “associated data” fails because of his failure to show what and where it was or could be. (It kind of becomes a general motion to suppress.) United States v. Smith, 2023 U.S. Dist. LEXIS … Continue reading

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AR: Claim state’s response to motion to suppress was judicial admission has to be presented to trial court

To argue that the state’s admissions in a response to a motion to suppress amount to a judicial admission of fact, the issue has to be argued to the trial court to preserve it. Otherwise, the trial court is free … Continue reading

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IA: State failure to object to lack of Franks preliminary showing results in hearing, but def fails anyway

Defendant got a Franks hearing without an adequate showing, and the state didn’t object. So the court of appeals considers the showing at the hearing over the state’s objection, and defendant fails to show recklessness or intentional false statement or … Continue reading

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FL4: Suppression of arrest exceeded the relief def sought and is reversed

Defendant’s motion to suppress did not put the state on notice that he was seeking to suppress the result of his arrest. The trial court erred in granting that relief. State v. Bender, 2023 Fla. App. LEXIS 27 (Fla. 4th … Continue reading

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D.Minn.: All theories to suppress must be raised to USMJ on referral or it’s waived

Defendant’s storage unit had the doors and handles tested with Ion Scanning. He had no reasonable expectation of privacy in that. Before the USDJ, however, he raised it was a trespass to do it as the officers did. That’s waived … Continue reading

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NY1: When state doesn’t challenge standing, it’s taken as conceded

When the state doesn’t challenge standing, it’s taken as conceded. The trial court thus erred in deciding standing. People v. Bonilla, 2022 NY Slip Op 07304, 2022 N.Y. App. Div. LEXIS 7136 (1st Dept. Dec. 22, 2022). Defendant had his … Continue reading

Posted in Burden of pleading, Issue preclusion, Probable cause, Standards of review | Comments Off on NY1: When state doesn’t challenge standing, it’s taken as conceded

OR: Even constitutional challenges need to be preserved below

Even constitutional challenges need to be preserved below. Jimenez v. Dep’t of Revenue, 370 Or. 543 (Dec. 15, 2022). The court does not find the officer’s testimony credible. He claimed he saw defendant with binoculars from 100′ away buying liquor … Continue reading

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Cal.2: MJ smell associated with minors still RS for an offense

Officers ran an LPN and saw that the vehicle had expired tags. Driving next to the car, officers smelled burnt marijuana and knew that the users were minors which is still an offense under California law. That was cause for … Continue reading

Posted in Burden of pleading, Franks doctrine, Ineffective assistance, Inevitable discovery, Plain view, feel, smell | Comments Off on Cal.2: MJ smell associated with minors still RS for an offense

IN: Mistake of law to an illegal search or seizure applies to the scope of the law, not whether it even exists

The mistake of law “defense” to an illegal search or seizure applies to the scope of the law, not whether it even exists. Here, it didn’t. White v. State, 2022 Ind. App. LEXIS 390 (Dec. 8, 2022). The specific characteristics … Continue reading

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SC: Exigency for CSLI was shooting victim left for dead and defendant was armed and dangerous

There was exigency for CSLI. “Thus, this was not a standard criminal investigation seeking cell phone data; rather, this request sought to address an ongoing emergency because Carter was potentially armed and dangerous, had been involved in a violent crime … Continue reading

Posted in Arrest or entry on arrest, Burden of pleading, Cell site location information, Emergency / exigency, Informant hearsay | Comments Off on SC: Exigency for CSLI was shooting victim left for dead and defendant was armed and dangerous

MO: Objection for “lack of foundation and improper procedure” not a 4A challenge

An objection to a BAC test for lack of foundation and improper procedure does not preserve a Fourth Amendment challenge. Petersen v. State, 2022 Mo. LEXIS 226 (Nov. 22, 2022). The officers made a valid plain view to damage to … Continue reading

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E.D.Ark.: Inmate states claim against Sheriff and jail phone provider that privileged attorney calls were turned over to police

Plaintiff Texas inmate was in an Arkansas county jail in 2015-17, and he discovered in 2021 through his current defense lawyer that the county jail phone contractor turned over telephone calls between him and his criminal defense lawyer to the … Continue reading

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M.D.Fla.: Lack of clarity of motion to suppress leads to denial

“Defendant’s motion is not a model of clarity.” “As an overarching concern, Defendant has not met his burden to be ‘sufficiently definite, specific, detailed, and nonconjectural’ in presenting a substantial claim as to either warrant.” “Defendant has not presented any … Continue reading

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CA4: Omissions under Franks have to be shown “designed to mislead”

When challenging a search warrant under Franks for omission of information, the defendant’s burden is higher because affidavits for warrants never include all available information and don’t have to, and the omissions have to be shown “designed to mislead.” Defendant … Continue reading

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MN: Reliable hearsay can be considered for PC

In determining probable cause, “reliable hearsay” may be considered. State v. Dixon, 2022 Minn. LEXIS 483 (Nov. 9, 2022). The question of lack of probable cause was not in the motion to suppress, but the trial court held there was, … Continue reading

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MA: Ptf stated claim for unjustified community caretaking entry to investigate alleged elder abuse

Plaintiff was caring for a 95-year-old retired priest. She stated a claim for a Fourth Amendment violation for a warrantless entry into her house, in part, under the community caretaking function without justification. Gallagher v. S. Shore Hosp., Inc., 2022 … Continue reading

Posted in Burden of pleading, Burden of proof, Community caretaking function, Curtilage | Comments Off on MA: Ptf stated claim for unjustified community caretaking entry to investigate alleged elder abuse

MA: Def not prejudiced by third party’s response to SW

A third party in possession of Medicaid records was served with a search warrant, and appellant complains of the procedural nature of the third party’s response. [Aside from no standing,] Appellant doesn’t even attempt to show that the exclusionary rule … Continue reading

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TN: No IAC: strategic choice to distance def from premises

Defense counsel wasn’t ineffective for not challenging the search of the premises. The defense at trial was that defendant was merely a guest who didn’t have control of the stuff found there. To link defendant more to the premises was … Continue reading

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D.C.Cir.: Bivens not extended to immigration detention

Bivens should not be extended to an immigration detention. K.O. v. Sessions, 2022 U.S. App. LEXIS 20984 (D.C. Cir. July 29, 2022). Plaintiff filed a § 1983 case against his prosecution which fails on Younger grounds. As to an illegal … Continue reading

Posted in § 1983 / Bivens, Burden of pleading, Immigration arrests, Waiver | Comments Off on D.C.Cir.: Bivens not extended to immigration detention

CA7: The question is only whether the officer reasonably believed def violated the law, not whether def did

“‘[T]he question … is whether [the officer] reasonably believed that he saw a traffic violation, not whether [the defendant] actually violated the [law].’ Cole, 21 F.4th at 428.” United States v. Yang, 2022 U.S. App. LEXIS 19125 (7th Cir. July … Continue reading

Posted in Burden of pleading, Foreign searches, Reasonable suspicion | Comments Off on CA7: The question is only whether the officer reasonably believed def violated the law, not whether def did