Texas added a fifth requirement to search warrants that the issuing magistrate’s name be clearly legible. It can be incorporated from the affidavit. Here it wasn’t, and the motion to suppress was properly granted and no good faith exception applies. State v. Arellano, 2019 Tex. App. LEXIS 1223 (Tex. App. – Corpus Christi – Edinburg Feb. 21, 2019).
One officer saw what he believed was a hand-to-hand drug transaction, and he passed it on to another officer. That satisfied the collective knowledge doctrine. State v. Preston, 2019 Ga. App. LEXIS 67 (Feb. 19, 2019).*
Posted inCollective knowledge, Warrant requirement|Comments Off on TX13: Unsatisified state requirement issuing magistrate’s name be clearly stated warranted suppression
A reserve deputy followed defendant who was driving badly and then she ran into a car in her driveway. He stopped behind her and told her to “hang tight,” and he called for a deputy. The stop was reasonable, considering it was a minor intrusion on defendant’s rights. State v. Wright, 2019 N.M. App. LEXIS 7 (Feb. 14, 2019): Continue reading →
Posted inReasonable suspicion, Reasonableness|Comments Off on NM: Reserve deputy’s stop of suspected DUI to call for a deputy was a reasonable minor intrusion
“Similarly, in this case, Charles Williams was discovered with a large amount of narcotics immediately after leaving the Target Apartment. … This incident alone is enough to establish a nexus to the Apartment to justify a warrant to search the Apartment.” United States v. Watts, 2019 U.S. Dist. LEXIS 25672 (W.D. Ky. Feb. 19, 2019).
Defendant’s weaving in his lane was reasonable suspicion for stop of his car. State v. Lobo, 2019 Iowa App. LEXIS 185 (Feb. 20, 2019).*
Defense counsel wasn’t ineffective for not challenging a search that would have lost. Saul v. State, 2019 Iowa App. LEXIS 193 (Feb. 20, 2019).*
Posted inNexus|Comments Off on W.D.Ky.: A customer leaving def’s house with a lot of drugs was nexus to def’s house
Defendant proved ineffective assistance of counsel from defense counsel’s failure to object to the search warrant application coming into evidence full of informant hearsay that wasn’t admissible in the case in chief. People v. Newman, 2019 NY Slip Op 01263, 2019 N.Y. App. Div. LEXIS 1302 (3d Dept. Feb. 21, 2019) [Not to mention the DA arguing it when he or she should have seen this coming. Admittedly, unobjected to hearsay is “evidence,” but the DA should have played it closer to the vest and mitigated the mistakes of defense counsel to avoid this.]: Continue reading →
Posted inUncategorized|Comments Off on NY3: Def counsel was ineffective for not objecting to SW affidavit coming into evidence full of inadmissible informant hearsay
Defendant was subjected to a command authorized search under Mil.R.Evid. 315(d). He argues that the definition of who is in control to authorize the search isn’t clear. Well, it isn’t, but that doesn’t mean that multiple people might not fit the definition. In any event, the good faith exception applies. United States v. Seerden, 2019 U.S. App. LEXIS 4891 (4th Cir. Feb. 20, 2019): Continue reading →
Posted inMilitary searches|Comments Off on CA4: More than one person can have authority to issue command authorized search under Mil.R.Evid. 315(d)
Officers were unaware of defendant’s mental illness when they talked to him and secured his consent. On the totality, it is found voluntary. United States v. Merrill, 2019 U.S. Dist. LEXIS 25763 (D. Me. Feb. 19, 2019) [it seems to me that the court stresses too much the officers’ knowledge of mental illness and not enough on his vulnerability]: Continue reading →
Posted inConsent|Comments Off on D.Me.: Officers’ lack of awareness of def’s mental illness a factor in def’s consent to search
Posted inSurveillance technology, Uncategorized|Comments Off on The Verge: Privacy advocate held at gunpoint after license plate reader mistake, lawsuit alleges
Excising that which was allegedly illegally obtained from the affidavit for this search warrant, probable cause still remains. United States v. Fleur, 2019 U.S. App. LEXIS 4899 (11th Cir. Feb. 20, 2019).
There was no independent probable cause for the juvenile’s arrest because the information the police were relying on was innocuous, and there was no attenuation. In re K.M., 2019 IL App (1st) 172322, 2019 Ill. App. LEXIS 88 (Feb. 20, 2019).*
The trial court properly applied a reasonable suspicion standard for whether a backpack found during a probation search belonged to the probationer. The argument was over whether it was to be a reasonable belief or reasonable suspicion. State v. Garnett, 2019 Ida. LEXIS 32 (Feb. 20, 2019).*
Posted inIndependent source, Probation / Parole search|Comments Off on CA11: When information in a SW affidavit comes from an illegal source, it is purged; here, PC remains
Waymack is a doctor in the U.S. who also has business in Israel. Israel sought assistance from the SEC under an international MOU for a securities investigation there. Waymack has a Fifth Amendment privilege to not provide information in the U.S. and that can’t be used against him here, but it can be under Israeli law. The court concludes that the SEC’s subpoena here is overbroad as to emails because, as written, if requires production of a huge number of emails. The SEC is ordered to redraft the subpoena to narrow it. United States SEC v. Waymack, 2019 U.S. Dist. LEXIS 25507 (D.D.C. Feb. 19, 2019).*
Defendant doesn’t get discovery on whether Torrent Downpour software used in child pornography searches and investigations is flawed. United States v. Gonzales, 2019 U.S. Dist. LEXIS 26061 (D. Ariz. Feb. 19, 2019).*
Posted inSubpoenas / Nat'l Security Letters|Comments Off on D.D.C.: SEC subpoena aiding Israel securities dept is overbroad and must be narrowed
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't."
—Me
“I am still learning.”
—Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"A system of law that not only makes certain conduct criminal, but also lays
down rules for the conduct of the authorities, often becomes complex in its
application to individual cases, and will from time to time produce imperfect
results, especially if one's attention is confined to the particular case at
bar. Some criminals do go free because of the necessity of keeping
government and its servants in their place. That is one of the costs of having
and enforcing a Bill of Rights. This country is built on the assumption that
the cost is worth paying, and that in the long run we are all both freer and
safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing
can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)
