Burden was not shifted to the defendant to prove that the search was illegal; it was merely required to show what his basis for claiming the search was. State v. Stanley, 2007 Ohio 2786, 2007 Ohio App. LEXIS 2538 (10th Dist. June 7, 2007):
[*P24] “[T]he state has the burden of going forward with evidence to show probable cause once the defendant has demonstrated a warrantless search or seizure and has raised lack of probable cause as a ground for attacking the legality of the search or seizure.” Xenia v. Wallace (1988), 37 Ohio St.3d 216, 218, 524 N.E.2d 889. However, “the prosecutor cannot be expected to anticipate the specific legal and factual grounds upon which the defendant challenges the legality of a warrantless search.” Id. at 218. The court in Wallace found that Crim.R. 47 “requires that the prosecution be given notice of the specific legal and factual grounds upon which the validity of the search and seizure is challenged.” Id. at 219. The court further noted that the rule is not solely for the benefit of the prosecution, but also serves to permit the trial court to prepare for a hearing. “[T]he court must know the grounds of the challenge in order to rule on evidentiary issues at the hearing and properly dispose of the merits.” Id. Therefore, the court placed the burden upon the defendant in a criminal case to “make clear the grounds upon which he [or she] challenges the submission of evidence pursuant to a warrantless search.” Id. Consequently, the “[f]ailure on the part of the defendant to adequately raise the basis of his challenge constitutes a waiver of that issue on appeal.” Id.
[*P25] In his motion to suppress, defendant did not challenge the accuracy or reliability of the drug-detection dog that sniffed the vehicle. Accordingly, we find that defendant’s arguments regarding the accuracy and reliability of the dog are waived for purposes of appeal. See State v. Bennett, Cuyahoga App. No. 86962, 2006 Ohio 4274 (finding that the defendant, who did not challenge the reliability of the dog or whether it alerted, waived these arguments for purposes of appeal).
[*P26] For the above reasons, we overrule defendant’s first assignment of error.
Defendant being a passenger in a vehicle owned and driven by a relative does not grant the defendant standing. Benitez v. State, 2007 Ark. App. LEXIS 414 (May 30, 2007).*
Officer observed defendant put something in his pants when pulled over. A patdown for weapons produced nothing, so the officer went after what she suspected would be drugs. Motion to suppress granted. People v. Dobson, 2007 NY Slip Op 4846, 2007 N.Y. App. Div. LEXIS 6971 (2d Dept. June 5, 2007).*
Defendant was a passenger in a taxicab stopped for a traffic offense, and the officer developed reasonable suspicion as to the passenger, which justified the detention. State v. Fry, 2007 Ohio 2734, 2007 Ohio App. LEXIS 2532 (9th Dist. June 6, 2007).*
Defendants’ stop lacked any basis in probable cause or reasonable suspicion, so the motion to suppress was properly granted. Even though the car was going slower than the other cars on the road, it was not “impeding” traffic. State v. Hannah, 2007 Tenn. Crim. App. LEXIS 441 (June 6, 2007):
Viewing the totality of the circumstances, Officer Shaw did not have a reasonable suspicion, supported by specific and articulable facts, to believe the defendants had committed a crime or were about to commit a crime when he initiated the traffic stop. Prior to stopping the defendants’ vehicle, the officer did not observe any traffic violations, such as running a stop sign or red light, or weaving across lanes into oncoming traffic. Neither did he witness any equipment failures, such as a non-working headlight or taillight. Nor was there any evidence that the vehicle lacked tags or had expired tags. Officer Shaw did not testify that it was his belief that the individuals in the car were perpetrating a crime or had just committed a crime.
Hot pursuit for fleeing from an obstructing an officer misdemeanor does not justify a warrantless entry in hot pursuit. State v. Sanders, 2007 WI App 174, 304 Wis. 2d 159, 737 N.W.2d 44 (2007):
P22 On appeal, the state relied upon the hot pursuit doctrine to justify the warrantless entry. Id., P12. We held that the entry violated the Fourth Amendment. See id., P17. We explained that in United States v. Santana, 427 U.S. 38, 43, 96 S. Ct. 2406, 49 L. Ed. 2d 300 (1976), the United States Supreme Court held that a suspect could not defeat an arrest that has been set in motion in a public place by escaping to a private place. We then interpreted Welsh as limiting Santana to the hot pursuit of fleeing felons. Mikkelson, 2002 WI App 152, 256 Wis. 2d 132, P17, 647 N.W.2d 421. Because the police pursued Mikkelson for obstructing an officer, a misdemeanor, we determined they were not permitted to enter the residence without a warrant. Id.
P23 We have a strikingly similar fact pattern in this case. As in Mikkelson, we have an uncooperative defendant who engaged in what officers believed was suspicious behavior. We have a defendant who, like Mikkelson, disregarded a police order to stop and proceeded into a residence. Finally, as in Mikkelson, the officers pursued Sanders for obstructing an officer, a misdemeanor offense. Applying Mikkelson and its construction of the post-Welsh exigent circumstances factors, we hold that the officers illegally entered Sanders’ residence.
