{"id":13191,"date":"2014-09-16T00:30:30","date_gmt":"2014-09-16T05:30:30","guid":{"rendered":"http:\/\/fourthamendment.com\/?p=13191"},"modified":"2014-09-14T19:43:17","modified_gmt":"2014-09-15T00:43:17","slug":"13191","status":"publish","type":"post","link":"https:\/\/fourthamendment.com\/?p=13191","title":{"rendered":"CA2: Court lacks \u201chigh level of confidence\u201d for inevitable discovery to apply"},"content":{"rendered":"

Here, the search discovering defendant\u2019s illegal firearms violated the Fourth Amendment, but the government argued for inevitable discovery, but the court lacks a \u201chigh level of confidence\u201d that the officers would have inevitably discovered it. The government\u2019s argument was essentially premised on assumptions that things might happen, particularly by the defendant, and that\u2019s just speculation, not a high level of confidence. United States v. Guarino<\/a>, 2014 U.S. App. LEXIS 17188 (2d Cir. September 5, 2014).<\/p>\n

Defendant claimed that federal law enforcement officers seized his stuff with a federal warrant; the feds say it was the state with a state warrant. If it was federal, the defendant carries the burden on a Rule 41(g) motion for return of property, and he fails. Also, the feds indicate that they still need it as potential evidence, so the return is denied. United States v. Myers, 2014 U.S. Dist. LEXIS 123394 (D. Nev. September 4, 2014).<\/p>\n

Court sounds like it\u2019s applying the wrong burden of proof to a warrantless search but actually does apply the correct one on the voluntariness of consent. United States v. Lockhart, 2014 U.S. Dist. LEXIS 123807 (W.D. Tex. June 10, 2014) (\u201cAs the proponent of a motion to suppress, Defendant bears the burden of proving, by a preponderance of evidence, that the evidence in question was obtained in violation of his Fourth Amendment rights. United States v. Kelley, 981 F.2d 1464, 1467 (5th Cir. 1993).\u201d)*<\/p>\n","protected":false},"excerpt":{"rendered":"

Here, the search discovering defendant\u2019s illegal firearms violated the Fourth Amendment, but the government argued for inevitable discovery, but the court lacks a \u201chigh level of confidence\u201d that the officers would have inevitably discovered it. The government\u2019s argument was essentially … Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[66,68,67],"tags":[],"class_list":["post-13191","post","type-post","status-publish","format-standard","hentry","category-burden-of-proof","category-inevitable-discovery","category-rule-41g-return-of-property"],"_links":{"self":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/13191","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=13191"}],"version-history":[{"count":2,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/13191\/revisions"}],"predecessor-version":[{"id":13193,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/13191\/revisions\/13193"}],"wp:attachment":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=13191"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=13191"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=13191"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}