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D.N.J.: Irreconcilable police testimony shows burden of proof of plain view fails

By John Wesley Hall, Jr.

Inconsistencies in officers' testimony on plain view showed government failed in its burden of proof on defendant's warrantless search. "[W]hile [the court] finds that the initial stop of Defendant's vehicle was lawful, it does not find that the Government has demonstrated that the firearm was in plain view at the time it was seized, and will accordingly grant Defendant's motion to suppress the firearm." United States v. Williams, 2009 U.S. Dist. LEXIS 48066 (D. N.J. June 3, 2009): Put simply, the Court finds Defendant's testimony that the firearm was kept out of sight under the driver's seat to be more credible than the officers' contention that the gun was in plain view on the console. Several considerations inform this determination. First, the testimony of Officer Galiazzi and Officer Diaz on the matter of where they observed the firearm in plain view was irreconcilably inconsistent...continue to full post

Full post as published by Fourth Amendment on June 14, 2009 (boomark / email).