Defendant failed in his burden of showing that the police lacked probable cause to arrest him without a warrant. People v Bulgin, 2010 NY Slip Op 20290, 29 Misc. 3d 286, 908 N.Y.S.2d 817 (Bronx Co. 2010):<\/p>\n
At a suppression hearing, it is the People’s burden to demonstrate the legality of the police conduct in the first instance, but defendant bears the ultimate burden of proving, by a preponderance of the credible evidence, that the evidence should not be used against him and that the police lacked probable cause to arrest him. People v Thomas<\/a>, 291 AD2d 462, 463 (2d Dept 2002); People v Sidhom, 204 AD2d 150 (1st Dept), lv denied, 84 NY2d 832 (1994).<\/p><\/blockquote>\n
The court is manifestly allocating the burden of proof to the wrong party under the Fourth Amendment. But, NY case law doesn’t help any. This is the train of citations (Sidhom is not pertinent):<\/p>\n
Thomas<\/a> (2002):<\/p>\n
The defendant, however, bears the ultimate burden of proving, by a preponderance of the credible evidence, that the evidence should not be used against him (see, People v Berrios, supra at 367; People v Baldwin, 25 NY2d 66, 70; People v Whitehurst, 25 NY2d 389, 391; Nardone v United States, 308 US 338, 341-342), and that the police lacked probable cause to arrest him (see, People v Milhouse<\/a>, 246 AD2d 119). <\/p>\n
. . .<\/p>\n
Accordingly, the People satisfied their burden in the first instance to prove the legality of the police conduct. By contrast, the defendant failed to establish his ultimate burden by a fair preponderance of the credible evidence that there was no probable cause for his arrest.\n<\/p><\/blockquote>\n
Milhouse<\/a> (1998):<\/p>\n
At a suppression hearing, the burden of proof is on the defendant to show, by a preponderance of the evidence, that the officer lacked probable cause to arrest (People v Abdullah<\/a>, 164 AD2d 260, 262). <\/p><\/blockquote>\n
Abdullah<\/a> (1990) (without citation of authority):<\/p>\n
After the Mapp<\/a> hearing, at which Officer Reynolds was the only witness, the suppression court denied the motion to suppress finding: “the People met their burden of going forward, but the defendant did not meet his burden of proving *** by a preponderance of the evidence that the marijuana and the marijuana cigarette were unlawfully taken from his person”. <\/p><\/blockquote>\n
If Mapp<\/a> is authority, that was with a search warrant, so the rule is different.<\/p>\n
How many times<\/a> do we have to point this out to the Fourth Amendment-impaired? Under the Fourth Amendment, the burden is always on the government to prove that a warrantless arrest or search is valid.<\/p>\n","protected":false},"excerpt":{"rendered":"
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