Category Archives: Burden of proof

S.D.Ga.: State knock-and-announce statute, if it applies at all, doesn’t confer standing on an alleged guest

Plaintiff said she was an overnight guest at the house searched and thus had standing, except that was never proved. “None of those facts are present here, as there is no record evidence showing that James had personal belongings in … Continue reading

Posted in Burden of proof, Exclusionary rule, Knock and announce, Reasonable suspicion, Standing | Comments Off on S.D.Ga.: State knock-and-announce statute, if it applies at all, doesn’t confer standing on an alleged guest

N.D.Ohio: When a stop is based on a law enforcement database, does reliability have to be shown? Here there was more

When a stop is based on a computerized law enforcement database, whether it has to be corroborated (see Gonzalez v. United States Immigration. & Customs Enf’t, 975 F.3d 788, 819 (9th Cir. 2020)) isn’t decided here because here there was … Continue reading

Posted in Burden of pleading, Burden of proof, Prison and jail searches, Reasonable suspicion, Waiver | Comments Off on N.D.Ohio: When a stop is based on a law enforcement database, does reliability have to be shown? Here there was more

OH1: Inadvertence for plain view is a fact question

The inadvertence requirement of plain view here was a fact question. Police showed up on a wellness check about an allegedly suicidal person. Here it was a syringe cap that led to finding the syringe. State v. Hyatt, 2024-Ohio-2422 (1st … Continue reading

Posted in Attenuation, Burden of proof, Dog sniff, Standards of review | Comments Off on OH1: Inadvertence for plain view is a fact question

Two on standing in a rental car

“We find that Guice was, like the driver in Byrd, a driver in lawful possession or control of a rental car and the mere fact that she had retained the vehicle beyond the rental return date does not defeat her … Continue reading

Posted in Burden of proof, Standing | Comments Off on Two on standing in a rental car

E.D.Ky.: When court can’t tell the dog alerted, motion to suppress granted

The court reviewing the dashcam video repeatedly cannot tell that the dog alerts at all. Motion to suppress granted. United States v. Edmonds, 2024 U.S. Dist. LEXIS 74570 (E.D. Ky. Apr. 24, 2024). Update: techdirt: Court To Cops: If We … Continue reading

Posted in Burden of proof, Dog sniff, Good faith exception | Comments Off on E.D.Ky.: When court can’t tell the dog alerted, motion to suppress granted

E.D.Mich.: Collateral estoppel bars religitating search in a § 1983 case where motion to suppress lost in criminal case

Collateral estoppel bars relitigating a search in a § 1983 case found lawful in an underlying criminal case. Boseman v. Flint Police Dep’t, 2024 U.S. Dist. LEXIS 46699 (E.D. Mich. Mar. 15, 2024). “As discussed, Brown acquired the information giving … Continue reading

Posted in Burden of proof, Issue preclusion | Comments Off on E.D.Mich.: Collateral estoppel bars religitating search in a § 1983 case where motion to suppress lost in criminal case

OH1: Trial court erred in not suppressing when officer couldn’t remember the basis of stop

Defendant satisfied his burden of pleading by stating the stop was without justification. At the hearing on the motion to suppress this OVI case, the officer couldn’t remember why defendant was stopped. The trial court erred in not suppressing. State … Continue reading

Posted in Burden of proof, Plain view, feel, smell, Reasonable suspicion | Comments Off on OH1: Trial court erred in not suppressing when officer couldn’t remember the basis of stop

N.D.Ohio: Drug lab results from controlled buy not required for PC

The government had probable cause for the search warrant for defendant’s house despite the fact that the drugs previously bought from him hadn’t come back from testing at the crime lab. United States v. Clark, 2024 U.S. Dist. LEXIS 24651 … Continue reading

Posted in Burden of pleading, Burden of proof, Probable cause, Reasonable suspicion | Comments Off on N.D.Ohio: Drug lab results from controlled buy not required for PC

E.D.N.C.: This iCloud SW not overbroad

The warrant for defendant’s iCloud account was not overbroad. Defendant essentially admitted that the information sought would be found there. United States v. Duncan, 2024 U.S. Dist. LEXIS 11090 (E.D.N.C. Jan. 22, 2024).* Defendant was in a rental vehicle, but … Continue reading

Posted in Burden of proof, Computer and cloud searches, Standing | Comments Off on E.D.N.C.: This iCloud SW not overbroad

W.D.Ky.: Boilerplate in affidavit doesn’t matter if the critical facts show PC

Boilerplate information in the affidavit for warrant doesn’t matter as long as the critical facts show probable cause, and here they did. There were five facts supporting probable cause. United States v. Morton, 2024 U.S. Dist. LEXIS 7580 (W.D. Ky. … Continue reading

Posted in Burden of proof, Neutral and detached magistrate, Reasonable expectation of privacy, Warrant papers | Comments Off on W.D.Ky.: Boilerplate in affidavit doesn’t matter if the critical facts show PC

SD: Failure to put SW materials in record means trial court presumed correct

There were two search warrants for location data and defendant’s cell phone. Without the search warrant materials in the appellate record, there’s nothing to review and the trial court is assumed to be correct. State v. Horse, 2024 S.D. 4, … Continue reading

Posted in Burden of proof, Emergency / exigency, Franks doctrine, Warrant papers | Comments Off on SD: Failure to put SW materials in record means trial court presumed correct

FL6: Trial court erred by de novo review of SW application

The trial court conducted a de novo review of the search warrant application, not seeing whether there was a substantial basis for finding probable cause. This was error. State v. Freeman, 2024 Fla. App. LEXIS 115 (Fla. 6th DCA Jan. … Continue reading

Posted in Burden of proof, Probable cause, Reasonable suspicion | Comments Off on FL6: Trial court erred by de novo review of SW application

WY: Def’s girlfriend showed apparent authority to enter their apartment after domestic dispute; Illinois v. Rodriguez redux

Officer’s reasonably relied on defendant’s girlfriend’s apparent authority to enter his apartment. She called 911 about what she described as a domestic assault where he struck her face. When police arrived, she was outside the apartment sitting on the stairs. … Continue reading

Posted in Apparent authority, Burden of proof, Informant hearsay, Inventory | Comments Off on WY: Def’s girlfriend showed apparent authority to enter their apartment after domestic dispute; Illinois v. Rodriguez redux

OH5: Put the affidavit for SW in the record at the suppression hearing

The affidavit for search warrant isn’t in the record on appeal, so the court presumes the regularity of proceedings in the trial court. The record that was made shows that there was probable cause. State v. Hill, 2023-Ohio-4381, 2023 Ohio … Continue reading

Posted in Burden of proof, Franks doctrine, Probable cause, Suppression hearings | Comments Off on OH5: Put the affidavit for SW in the record at the suppression hearing

W.D.Mo.: SW found to have been served after 6 am, but even if not, no prejudice

The court’s credibility determination is that the warrant here was executed after 6:00 a.m., not before. Even if they arrived early, they didn’t enter until 6:00 a.m. “Assuming, arguendo, the officers searched Defendant’s home before 6:00 a.m., the facts demonstrate … Continue reading

Posted in Burden of proof, Nighttime search, Probation / Parole search | Comments Off on W.D.Mo.: SW found to have been served after 6 am, but even if not, no prejudice

NM: State had to support search incident to arrest of def’s purse at suppression hearing and didn’t

Defendant’s purse over the shoulder was not part of her person. It was removed from her and later searched incident to arrest. The state failed to support the search incident doctrine at the suppression hearing of where the purse was … Continue reading

Posted in Burden of proof, Consent, Reasonable suspicion, Search incident | Comments Off on NM: State had to support search incident to arrest of def’s purse at suppression hearing and didn’t

CA9: Franks challenge has to include showing lack of PC

On a Franks challenge, “Defendant failed to establish that, if additional information about the informant’s credibility had been included, the affidavit would have been insufficient to establish probable cause.” United States v. Carter, 2023 U.S. App. LEXIS 22478 (9th Cir. … Continue reading

Posted in Arrest or entry on arrest, Burden of proof, Franks doctrine, Probable cause | Comments Off on CA9: Franks challenge has to include showing lack of PC

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

CA5: No police wrongdoing here to support “police created exigency”

Defendant came in to the police for an interview about sex assault in the Army. As it developed, exigency for seizure of defendant’s cell phone arose. This was not a police created exigency which requires some wrongdoing on the part … Continue reading

Posted in Arrest or entry on arrest, Burden of proof, Emergency / exigency, Seizure, Warrant execution | Comments Off on CA5: No police wrongdoing here to support “police created exigency”

CA6: Unintended target of a police shooting, another officer, has a 4A seizure and excessive force claim

One officer fired a gun at a suspect inside a dwelling, apparently without aiming, and hit another officer. That was still a Fourth Amendment seizure of the person of the officer despite being an unintended target. Kilnapp v. City of … Continue reading

Posted in Arrest or entry on arrest, Burden of proof, Excessive force, Seizure | Comments Off on CA6: Unintended target of a police shooting, another officer, has a 4A seizure and excessive force claim