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- thedrive.com: Police Are Tagging Fleeing Cars With GPS Darts to Avoid Dangerous Pursuits
- CO: School search of serial offender under firearms “safety plan” was reasonable
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- VA Lawyers Weekly: Officials denied immunity for strip searching jail nurse
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ABA Journal Web 100, Best Law Blogs (2017); ABA Journal Blawg 100 (2015-16) (discontinued 2018)
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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 -
© 2003-24,
online since Feb. 24, 2003 Approx. 425,000 visits (non-robot) since 2012 Approx. 45,000 posts since 2003 (26,730+ on WordPress as of 12/31/23) -
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Fourth Amendment cases,
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Congressional Research Service:
--Electronic Communications Privacy Act (2012)
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"If it was easy, everybody would be doing it. It isn't, and they don't."
—Me -
"Life is not a matter of holding good cards, but of playing a poor hand well."
–Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others) -
“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 -
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848) -
"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)
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Category Archives: Burden of pleading
OH1: Automobile exception does not apply to a purse removed from vehicle before PC developed
“In this appeal, we are asked to consider the narrow application of the automobile exception to the Fourth Amendment’s warrant requirement: whether officers may, in the course of a car search, search a container held roughly 25 feet away from … Continue reading
TN: Collective knowledge also applies to RS
Collective knowledge also applies to reasonable suspicion. State v. Hodge, 2023 Tenn. Crim. App. LEXIS 317 (Aug. 24, 2023). Defendant’s “certified question” for appeal was overbroad. State v. Beech, 2023 Tenn. Crim. App. LEXIS 313 (Aug. 24, 2023).* Defendant was … Continue reading
D.Ariz.: No REP in shared folder on computer open on eMule program
The government’s “pre-search” of a shared folder on defendant’s computer available through eMule was not subject to a reasonable expectation of privacy and was reasonable. United States v. Johnson, 2023 U.S. Dist. LEXIS 146664 (D. Ariz. Aug. 21, 2023), adopting … Continue reading
D.D.C.: Second thoughts about unobjected to Facebook posts in 1/6 trial doesn’t mean govt violated particularity
1/6 defendants didn’t object to Facebook materials obtained by search warrant. In their motion for new trial they’re concerned with one entry in 14,000 pages that the government must have exceeded the warrant. “Even if these underdeveloped allegations held water, … Continue reading
OH5: Pickup of visitor parked on street could be searched with SW for premises where it was suspected of drug transactions there
Defendant’s pickup was parked on the street in front of another man’s house that was searched with a warrant. His truck was searched too, but wasn’t mentioned in the warrant. “We find the search of the truck was authorized by … Continue reading
CA7: The remedy for an overbroad SW is a motion to suppress, not a motion to dismiss
An alleged overbroad email search warrant is pursued by a motion to suppress, not a motion to dismiss. “The remedy for such Fourth Amendment violations in a criminal proceeding is suppression of the evidence, not dismissal of the indictment or … Continue reading
CA2: GFE applies to particularity of SWs too
The good faith exception applies to particularity questions where the officer cannot reasonably be expected to question the scope of the warrant. United States v. Walker, 2023 U.S. App. LEXIS 11798 (2d Cir. May 15, 2023). “Given that a police … Continue reading
SD: Def not in custody during DNA SW when asked basic questions
Despite language difficulties, defendant did speak some English, enough to refer to erection difficulties, and he never indicated he didn’t understand. He was not in custody for Miranda purposes when he was asked some basic questions and volunteered information while … Continue reading
MN: Purse in car could be searched under automobile exception
The warrantless search of defendant’s purse was lawful under the automobile exception because there was probable cause to believe that the car contained a controlled substance, and the purse was a container within that car. State v. Barrow, 2023 Minn. … Continue reading
OH3: Def’s motion to determine legality of arrest never sought to suppress anything and wasn’t appealable
Defendant’s motion to determine the legality of his arrest was not even called a motion to suppress. It was not even appealable as it was framed. “[T]he motion filed by Sanchez on October 28, 2020, was not captioned a ‘motion … Continue reading
OH12: Fact LEO broke traffic laws to catch speeder isn’t a 4A reasonableness defense
The fact a police officer arguably broke traffic laws to effect a stop of a fleeing motorist isn’t a defense to a traffic stop under the Fourth Amendment or the state constitution. State v. Johnson, 2023-Ohio-1320, 2023 Ohio App. LEXIS … Continue reading
C.D.Cal.: Mere seizure of a firearm not per se a 2A violation
“‘The mere occurrence of a firearm seizure during a traffic stop, however, is not enough to establish a Second Amendment violation. Police seize and confiscate firearms routinely, and this Court will not presume that each and every one of those … Continue reading
AR: Failure to argue against GFE below bars argument on appeal
Failure to challenge application of the good faith exception in the trial court on running the LPN through insurance database precludes challenging it on appeal. Erby v. State, 2023 Ark. App. 220, 2023 Ark. App. LEXIS 211 (April 12, 2023). … Continue reading
OH5: Admission of MJ but no MMJ card was PC
Admission there was marijuana in the car and nobody had a MMJ card was probable cause. State v. Hale, 2023-Ohio-1057, 2023 Ohio App. LEXIS 1025 (5th Dist. Mar. 30, 2023). A conclusory allegation that false information in an affidavit for … Continue reading
WA: Stop to inquire of paying transit fare violated state constitution
Defendant’s freedom under the state constitution to not be interfered with in his private affairs was violated by a stop and inquiry whether he had paid a transit fare. He provided a false name that led to his prosecution for … Continue reading
Cal.4: Without specific argument, court won’t look to SW and affidavit to make it for the appellant
Without specific argument, the court of appeals will not scour the record and the search warrant affidavit to make a party’s argument for him. Billauer v. Escobar-Eck, 2023 Cal. App. LEXIS 144 (4th Dist. Feb. 28, 2023) (anti-SLAPP case; not … Continue reading
S.D.Ill.: When moving to suppress “data” one has to be specific
Defendant’s motion to suppress “data” and “associated data” fails because of his failure to show what and where it was or could be. (It kind of becomes a general motion to suppress.) United States v. Smith, 2023 U.S. Dist. LEXIS … Continue reading
AR: Claim state’s response to motion to suppress was judicial admission has to be presented to trial court
To argue that the state’s admissions in a response to a motion to suppress amount to a judicial admission of fact, the issue has to be argued to the trial court to preserve it. Otherwise, the trial court is free … Continue reading
IA: State failure to object to lack of Franks preliminary showing results in hearing, but def fails anyway
Defendant got a Franks hearing without an adequate showing, and the state didn’t object. So the court of appeals considers the showing at the hearing over the state’s objection, and defendant fails to show recklessness or intentional false statement or … Continue reading