Category Archives: Burden of proof

D.Minn.: Govt fails on its burden of proving GFE applies; no witnesses called

The search warrant for defendant’s cell phone lacked probable cause for lack of specificity. More importantly, the government failed in its burden of proof to show the good faith exception applies. United States v. Armstrong, 2022 U.S. Dist. LEXIS 207602 … Continue reading

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E.D.Cal.: Govt failed in its burden of proof on justification for protective sweep

The court finds, with the evidence in equipoise, the government didn’t meet its burden of showing the arrest happened inside defendant’s house or outside. This is critical, because the police did a protective sweep and used that to get a … 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

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S.D.N.Y.: Court has no jurisdiction to interfere with a laptop search initiated in another district

“The Court will not interfere with the Government’s review of the laptop pursuant to a search warrant obtained from a different Court — except to require the Government to submit a status update no later than October 28, 2022. As … Continue reading

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MN: When prosecution shows private search doctrine applies, defense has burden to show government action

When a defendant moves to suppress the evidence obtained from a warrantless search and the State proves that the private search doctrine applies, the burden to show that the private party was acting on behalf of the government falls on … Continue reading

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PA: State bears initial burden of showing lack of REP that def must meet

In Pennsylvania, the state has to attempt to show a lack of reasonable expectation of privacy before it can argue a lack of standing. Here, it acquiesced in standing until after it lost the suppression argument, and that’s too late. … Continue reading

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VA: Police call to medical emergency developed into invalid consent for drug search

Police responded to a medical emergency and it turned into a narcotics investigation without reasonable suspicion. Defendant’s consent when surrounded by three police officers, one of whom thought it was a narcotics stop, was involuntary and the consent is suppressed. … 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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OR: Syringe was plain view even if not contraband per se

A syringe, although not contraband per se, satisfied the immediately apparent prong of plain view. State v. Wise-Welsh, 318 Ore. App. 146, 2022 Ore. App. LEXIS 357 (Mar. 2, 2022). “Given these inconsistences, it is impossible to determine ‘exactly what … Continue reading

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E.D.Cal.: Overbreadth argument has to be developed; court won’t make it for you

The officer picking up defendant’s cell phone and the screen lighting up was not a search. It was inadvertent, and the phone had to be picked up to do anything with it. Even if it was, the exclusionary rule should … Continue reading

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S.D.Ind.: The state used Google satellite images to corroborate officer’s testimony of stop

The government used Google satellite images and distancing to corroborate the officer’s testimony defendant didn’t signal his turn in time. After the stop, the smell of marijuana was apparent. United States v. Miles, 2022 U.S. Dist. LEXIS 14860 (S.D.Ind. Jan. … Continue reading

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ND: A prima facie showing of an illegal search or seizure shifts burden to state to justify

“If a defendant makes a prima facie showing of an illegal search or seizure, the burden shifts to the government to show an exception applies.” Here there was no seizure until the officer took defendant’s keys and turned off his … Continue reading

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CA1: Burden on “neutral and detached magistrate” is on defense, and here the showing was speculative

The search warrant issuing magistrate’s husband was a doctor and a potential victim of a DoS cyberattack at a children’s hospital in Boston, allegedly perpetrated for personal reasons. The claim the USMJ was not neutral and detached is speculative. “But … Continue reading

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UT: DNA SW can be executed by force; def has burden of showing unreasonable force was used to execute a DNA warrant on his person

A search warrant was issued for defendant’s DNA, and he resisted efforts to take it by buccal swab. He doesn’t challenge the probable cause, only the method of execution. He carries the burden of proof on the question of unreasonableness … Continue reading

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D.S.C.: Def can’t get discovery of all SW affidavits from officer for 2 1/2 years

Defendant does not get discovery of every search warrant affidavit over the last 2½ years prepared by the detective in this case. “Defendant has offered no justification for the request of all affidavits prepared by Detective Jackson over the last … Continue reading

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ID: Def has burden of proving standing and can’t rely on state seeking to prove he didn’t have standing

Defendant had the burden of showing standing, and he couldn’t rely on the state not proving he didn’t have standing. Wilson v. State, 2021 Ind. App. LEXIS 264 (Aug. 24, 2021). Finding that defendant was on federal supervised release was … Continue reading

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FL2: State’s failure to prove policy for inventory was failure of proof on warrantless search

Inventory is an exception to the warrant requirement, so the state carries the burden of proof. Here, the state failed to prove the policy, a General Order, that permitted the inventory to show that it was not a subterfuge for … Continue reading

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OH10: Not challenging SW was strategic choice in self-defense case

Defense counsel wasn’t ineffective for not objecting to the search warrant because it would contradict his claim of self-defense. State v. Messenger, 2021-Ohio-2044, 2021 Ohio App. LEXIS 2017 (10th Dist. June 17, 2021) (see § 60.19) The issue here is … Continue reading

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CA9: Defendant had standing in his hotel room despite having no REP in a stolen laptop in the room

Defendant had standing to challenge the search of his hotel room, but he did not have any reasonable expectation of privacy in a stolen laptop he possessed. If the entry into the hotel room is unreasonable, the seizure of the … Continue reading

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N.D.W.Va.: Def has burden (at least) on standing

At least for standing, “the burden of proof for a motion to suppress is on the party seeking to suppress the evidence. United States v. Dickerson, 655 F.2d 559, 561 (4th Cir. 1981).” United States v. Anderson, 2021 U.S. Dist. … Continue reading

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