The 4th: Burden of Proof

Burden of proof

In order to challenge a search or seizure, a party will most likely need to file a motion to suppress. While, the State has the initial burden to show that a warrantless search was legitimate under an exception to the Fourth Amendment, the defendant has the burden to show that he had an expectation of privacy.[1]Remember, a prosecutor cannot use the testimony of the defendant in a suppression hearing against him in trial.[2]

Case Law

“As an initial matter, the parties dispute who had the burden of proving the alleged illegality of the police officers' actions here. Each party has the burden to prove separate things during the motion to suppress. The State bears the burden to demonstrate that it was entitled to conduct the search or seizure under an exception to the Fourth Amendment's warrant requirement. The State also bears the burden to show that the warrantless entry was limited in scope and duration in accordance with the exigent circumstances which required its presence. However, the criminal defendant retains the burden to establish that he is asserting his own Fourth Amendment rights, rather than vicariously asserting the rights of others; therefore, the defendant bears the burden to demonstrate that he had an actual and reasonable expectation of privacy in the place illegally searched. Here, assuming arguendo that the police officers committed a Fourth Amendment violation when they entered the porch of Apartment 122 without a warrant, the burden rests with Petitioner to establish that he had a reasonable expectation of privacy in the porch of Apartment 122.”

State v. Robinson, 410 S.C. 519, 530 (2014) (citations omitted).

“The self-incrimination dilemma, so central to the Jones decision, can no longer occur under the prevailing interpretation of the Constitution. Subsequent to Jones, in Simmons v. United States, we held that a prosecutor may not use against a defendant at trial any testimony given by that defendant at a pretrial hearing to establish standing to move to suppress evidence. For example, under the Simmons doctrine the defendant is permitted to establish the requisite standing by claiming ‘possession’ of incriminating evidence. If he is granted standing on the basis of such evidence, he may then nonetheless press for its exclusion; but, whether he succeeds or fails to suppress the evidence, his testimony on that score is not directly admissible against him in the trial.”

Brown v. United States, 411 U.S. 223, 228 (1973) (citation omitted)


[1] State v. Robinson, 410 S.C. 519, 530 (2014)

[2] Brown v. United States, 411 U.S. 223, 228 (1973)


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