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UNITED STATES DISTRICT COURT DISTRICT OF MAINE

UNITED STATES OF AMERICA

v. BILLY SANTANA, DEFENDANT

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CRIMINAL NO. 05-105-P-H-01

ORDER AFFIRMING IN PART AND REJECTING IN PART THE RECOMMENDED DECISION OF THE MAGISTRATE JUDGE

The Magistrate Judge has recommended that I deny summarily the defendant's motion to suppress the product of three searches, two without a warrant and one with a warrant. The Magistrate Judge accepted the

government's argument that the motion could be denied summarily and with no evidentiary hearing because the defendant offered "nothing but conclusory and speculative allegations" in his motion. Recommended Decision on Mot. to

Suppress at 3 (Docket Item 230). I adopt the Recommended Decision and DENY the motion to suppress with respect to the search that was pursuant to a warrant. The defendant has offered nothing to show any impropriety in the warrant or the application so as to justify exclusion of evidence. Clearly he bears the burden to do so.

I do not accept the Recommended Decision as to the two warrantless searches. Instead, I R EMAND the case to the Magistrate Judge to conduct an evidentiary hearing on whether evidence from those searches should be suppressed.1 For a warrantless search, the government has the burden of proof on consent or on establishing an exception to the warrant requirement. See, e.g., Welsh v. Wisconsin, 466 U.S. 740, 750 (1984) ("[T]he burden is on the government to demonstrate exigent circumstances that overcome the presumption of unreasonableness that attaches to all warrantless home entries."); 3A Charles Alan Wright et al., Federal Practice and Procedure: Criminal 3d

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Maine Law