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D.Me.: The shifting burdens of proof on SWs and GFE

By John Wesley Hall, Jr.

The officers executing a search warrant came upon papers during execution of a search warrant with website addresses and “lolita” and “boys” along with pictures of nude boys. This was plain view because the warrant was valid. United States v. Clark, 2010 U.S. Dist. LEXIS 115048 (D. Me. October 27, 2010)*: A defendant bears the burden of proving the illegality of a warrant; if he succeeds, the burden shifts to the government to prove entitlement to the Leon good-faith exception. See, e.g., United States v. Longmire, 761 F.2d 411, 417 (7th Cir. 1985) (“The general federal rule on who bears the burden of proof with respect to an allegedly illegal search or seizure is based upon the warrant-no warrant dichotomy: If the search or seizure was effected pursuant to a warrant, the defendant bears the burden of proving its illegality; if the police acted without a warrant, the prosecution bears the burden of establishing legality...continue to full post

Full post as published by Fourth Amendment on November 01, 2010 (boomark / email).