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- CA5: Even if parole search was to aid criminal investigation, it was still reasonable
- IN: Cell phone linked to murder by TM sent before; PC for search
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- D.Minn.: Regular CI had “extensive knowledge of street gangs, firearms, and narcotics distribution”; there was PC
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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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--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: Good faith exception
D.R.I.: SW affidavit that failed to incorporate what it said it was failed to show PC and thus no GFE
The affidavit for warrant was supposed to incorporate by attaching other stuff. The officer swore to it, but the stuff wasn’t there. The good faith exception is denied because it remained bare bones. United States v. Medina, 2024 U.S. Dist. … Continue reading
D.N.M.: No GFE for a Franks violation
Defendant met his Franks burden and showed a false statement in the affidavit for search warrant that was material to the probable cause finding. The statement was from the chief to the affiant. Finally, there is no good faith exception … Continue reading
D.Ariz.: Govt’s civil discovery demands don’t implicate the 4A
When the government is sued, its discovery demands do not implicate the Fourth Amendment. Arizona Yage Assembly v. Barr, 2024 U.S. Dist. LEXIS 42197 (D. Ariz. Feb. 22, 2024). The obtaining of defendants CSLI before Carpenter was lawful then, and … Continue reading
D.N.M.: Geofence warrant relied on in good faith
A geofence warrant was used to gather information to attempt to find the robber of a postal worker. Geofence warrants are novel, the defendant may not have shown standing, and the government gets to rely on the good faith exception. … Continue reading
N.D.Ala.: By the time the drug dog entered the car, there already was PC
The drug dog entered the car on the second attempt. But defendant left the door open, and the smell of marijuana was evident. The officer held the dog back in case there was something hazardous in the car. Still, not … Continue reading
KS: No basis for a stop of car in a local park under “public safety exception”
A public safety stop is well recognized, deriving from Cady. “In this case, however, the facts do not support a valid safety stop. The deputy stated he was concerned because it was dark, it was late, the car was parked … Continue reading
Cal.2d: Questions posed during a traffic stop while waiting for the records check do not extend the stop
Questions posed during a traffic stop while waiting for the records check to come back do not extend the stop. People v. Felix, 2024 Cal. App. LEXIS 154 (2d Dist. Mar. 7, 2024). Defendant’s bad search claim as part of … Continue reading
MN: Evans rejected under state constitution; arrest on quashed warrant invalid
“Because we recognize several purposes served by the exclusionary rule, including deterring unlawful government conduct generally, and we conclude that applying the exclusionary rule here serves these remedial goals, we decline to extend the good-faith exception to the exclusionary rule … Continue reading
CA10: Evidence obtained by state in prosecution later barred by McGirt still with good faith
Defendant was originally prosecuted in Oklahoma state court for murder. After McGirt v. Oklahoma, he moved to set aside the Oklahoma conviction as being obtained without jurisdiction. In federal court, he moved to suppress the evidence obtained by the state … Continue reading
CA6: DEA SW for tableting machine lacked PC, but GFE exception saves search
“The facts of this case are undisputed. On October 20, 2021, Brett Dauphinais ordered a tableting machine, a device that retails for thousands of dollars and allows the user to make food or drug tablets. Tableting machines can be used … Continue reading
CA2: A temporal limitation on the SW would have been better, but it’s still cured by GFE
It would have been better for the search warrant to have included a temporal limitation, but that doesn’t have to be decided because the good faith exception is found to apply in any event. United States v. Saint Clair, 2024 … Continue reading
N.D.Ind.: SW for wrong house was completely lacking in PC, so no GFE
The court previously held there was no probable cause for the search warrant for the address searched, and this opinion is about the good faith exception. The court finds that no reasonably trained officer would have seen probable cause here … Continue reading
E.D.N.C.: Emergency disclosure of text message via 18 U.S.C. § 2702(b)(8) gets GFE applied because almost no case law
Law enforcement got emergency disclosure of text messages to find a person. The good faith exception applied because the statute has never been interpreted to not allow that. “Here, law enforcement relied on the voluntary disclosure procedure set forth in … Continue reading
D.R.I.: SW required for a short term CSLI Tower Dump
Finding short term CSLI obtained by a cell phone tower dump also protected by the Fourth Amendment, the court holds, disagreeing with other courts, that a warrant was required, but the good faith exception applies. An long, interesting opinion. “The … Continue reading
W.D.Pa.: Affidavit for SW failed to show PC, but it wasn’t completely bare bones, so GFE applies
The affidavit averred that defendant came from his house and got in his car manifesting characteristics of somebody who was probably armed, although the officers could see no gun. This is all inference, which isn’t precluded. The affidavit is not … Continue reading
DE: Challenge to search after PG doesn’t show actual innocence
After acquired information that a cell site simulator might have been misused doesn’t show actual innocence or undermine guilty plea. “The appellant pleaded guilty, and his assertion that he has new evidence that law enforcement illegally or improperly used cell-site … Continue reading
CA2: Dog sniff of def’s car in driveway was done in GF reliance on law at time
Acting on a tip, officers did a dog sniff of defendant’s covered car parked in his driveway, and they used that to get a warrant for it. Collins didn’t come along until the following year. The officers laid it all … Continue reading
D.Minn.: SW arguably included use of cell site simulator to track phone; GFE applied in any event
The state issued warrant here authorized the use of a cell site simulator, but this wasn’t explicitly stated in the affidavit for warrant. And, the affidavit wasn’t incorporated into the warrant either. This is a close question. The court comes … Continue reading