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 car. His breath provided reasonable suspicion for the detention. State v. Vannett, 2021 ND 225, 2021 N.D. LEXIS 220 (Dec. 9, 2021).

“It is quite clear from the governing law cited in the report that Defendant has no Fourth Amendment standing to object (1) to the search of the back porch stairs of a home where he was not an invited guest, resident, or owner; and (2) the seizure of the narcotics and gun found under those stairs to which he disclaims any ownership or possessory interest. It is equally clear that even assuming Defendant had standing to contest the search and seizure, he is not entitled to a Franks hearing. Once any allegedly false or misleading statements are removed from the affidavit used to obtain the warrant, there still existed more than sufficient probable cause.” United States v. Blair, 2021 U.S. Dist. LEXIS 236612 (W.D.Mo. Dec. 10, 2021).*

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