Category Archives: Burden of pleading

AZ: Failure to include SW and affidavit in record for appeal is waiver

Defendant waived the Fourth Amendment claim about the search of his blood by not including the search warrant and its application in the appellate record. It is thus presumed to support the trial court’s decision. State v. Gomez, 2021 Ariz. … Continue reading

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N.D.Cal.: Exigency for entry fails; officers knew victim was not there

The emergency aid justification for a warrantless entry into defendant’s house in a domestic dispute wasn’t applicable because there no longer was an emergency. The victim was safe elsewhere and nobody was home. Also, the good faith exception wasn’t proved … Continue reading

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W.D.Pa.: Generic motion to suppress denied

Defendant’s general motion to suppress is denied. United States v. Knox, 2021 U.S. Dist. LEXIS 72716 (W.D. Pa. Apr. 15, 2021). “In short, when viewing this evidence in the light most favorable to appellant, reasonable minds could only conclude that … Continue reading

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CA3: Mid-trial suppression argument wasn’t timely

Defendant’s mid-trial suppression motion was untimely despite the defense claim that this was a second search he wasn’t aware of until it came up at trial. United States v. Elcock, 2021 U.S. App. LEXIS 9503 (3d Cir. Apr. 1, 2021). … Continue reading

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W.D.La.: Motion to suppress SW has to plead and proffer that GFE doesn’t apply

Defendant had a duty to address the good faith exception in his motion and amended motion to suppress a search under a warrant, but he did not. United States v. Lyons, 2021 U.S. Dist. LEXIS 48780 (W.D. La. Feb. 17, … Continue reading

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KY: Trial court has no duty to suppress without defense objection

The trial court has no duty to sua sponte suppress when the defense makes no objection. It also isn’t plain error. Gardner v. Commonwealth, 2021 Ky. App. LEXIS 23 (Mar. 12, 2021) (unpublished):

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OH7: Search incident proper after concealed weapon found on def

Defendant was searched and arrested for a concealed weapon. That did not prohibit the officers from further searching his personal effects in his clothes. State v. Zepernick, 2021-Ohio-719, 2021 Ohio App. LEXIS 724 (7th Dist. Mar. 4, 2021). 2254 petitioner’s … Continue reading

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GA: 4A claim had to be raised at agency hearing level to preserve for appeal

Failure to object on Fourth Amendment grounds at the agency level before the zoning board in a zoning administrative case was waiver for appeal. Forsyth County v. Mommies Props. LLC, 2021 Ga. App. LEXIS 145 (Mar. 11, 2021). “The first … Continue reading

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WY: Mere citation to state constitution without cogent argument for different treatment is waiver

Citation alone to the state constitution’s search and seizure without cogent argument for differentiating Fourth Amendment cases is waiver. The totality of information before the officer in the traffic stop justified it. Elmore v. State, 2021 Wyo. LEXIS 48 (Mar. … Continue reading

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D.Conn.: When govt raises an exception to warrant requirement, def must rebut in briefing, but cell phone seizure shown unjustified

In response to defendant’s motion to suppress, the government argued search incident, which the defense didn’t rebut in the papers. Motion denied in part. Defendant’s cell phone seizure is suppressed, however, because the government didn’t show justification for its seizure. … Continue reading

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NE requires suppression issue be renewed when evidence admitted at trial

Failure to renew a suppression issue decided against you pretrial when the evidence is admitted is waiver in Nebraska. Besides, the issue on appeal would lose on the merits because the officer had reasonable suspicion for the stop and then … Continue reading

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NY: Denial of ownership of a key fob found under def at his arrest is abandonment of the car

Defendant could be detained during the search of his house under a warrant. When he got up off the floor, there was a key fob underneath him, and he denied it was his. The officers used the panic button to … Continue reading

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OH1: Blood draw from unconscious driver is by consent and reasonable

“Under [Ohio statute] an unconscious driver is deemed to have consented to a blood draw,” and that doesn’t violate the Fourth Amendment. State v. Albright, 2021-Ohio-292, 2021 Ohio App. LEXIS 301 (1st Dist. Feb. 3, 2021).* 2255 petitioner’s Fourth Amendment … Continue reading

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AR: Reasonableness of a probation search has to be presented to revocation court first

Defendant didn’t argue in the revocation court that the probation search was unreasonable, so it can’t be argued on appeal. Mathis v. State, 2021 Ark. App. 49, 2021 Ark. App. LEXIS 57 (Feb. 3, 2021). Defendant was on release and … Continue reading

Posted in Automobile exception, Burden of pleading, Burden of proof, Probation / Parole search, Standards of review | Comments Off on AR: Reasonableness of a probation search has to be presented to revocation court first

CA9: ICE warrant authorized knocking at appellant’s door, and co-occupant consented to entry

ICE officers could approach appellant’s door under Jardines with an immigration arrest warrant even though it is not a judicial warrant. “The immigration warrant licensed the officers to solicit consent to entry for the limited purpose of enforcing the civil … Continue reading

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CA1: Defense must argue cost v. benefits of exclusionary rule or issue is likely waived

When invoking the exclusionary rule, the defendant necessarily has to show that the deterrence value of exclusion outweighs the costs of exclusion. United States v. Cruz-Ramos, 2021 U.S. App. LEXIS 2284 (1st Cir. Jan. 27, 2021), n. 9:

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E.D.Wis.: No REP as to pole camera surveillance, one in an apt building hallway

Two surveillance cameras were installed; one on a pole, one in a hallway of an apartment building. Defendant, a visitor, had no reasonable expectation of privacy. A codefendant already litigated this motion and lost, and he should have acknowledged the … Continue reading

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D.V.I.: Failure to put on proof at suppression hearing leads to show cause order to defense

Defendant filed a motion to suppress a statement and a search. At the hearing, however, the search wasn’t challenged. Defendant has to show cause why that part of the motion should not be denied. United States v. Henry, 2021 U.S. … Continue reading

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N.D.Ind.: Ptf’s 4A claim wasn’t sufficiently articulated to state a claim

“Mr. Ryan also alleges that there wasn’t any ‘adversarial pursuit of the Fourth Amendment’s protection of privacy can not be invalidated simply because a person’s right to want to be private evidences unlawful activity because the person does not want … Continue reading

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N.D.Ind.: Franks challenge in PC clothing fails for no offer of proof

“At first glance, the Defendant’s motion does not appear to be a true Franks hearing request as it does not appear to contest the veracity of the statements of the affiant or assert that she made false allegations. Rather, it … Continue reading

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