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- S.D.Ohio: Defense of denial of possession in drug case meant no assertion of standing to challenge the search, so no IAC
- N.D.Okla.: Anticipatory tracking warrant for money counter is without authority and nexus is speculative even if not
- CA9: Supervised release condition of financial disclosure permitted under 18 U.S.C. § 3553(a) and didn’t violate 4A
- N.D.Ohio: Refusing discovery on 4A grounds in forfeiture case results in no standing
- thedrive.com: Police Are Tagging Fleeing Cars With GPS Darts to Avoid Dangerous Pursuits
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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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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: Custody
OH10: Window tint violation justified impoundment and inventory, even though discretionary
Under the inventory policy, the police had the discretion to impound vehicles with excessive window tint, even though they did not apply impoundment uniformly. State v. Hall-Johnson, 2022-Ohio-3512, 2022 Ohio App. LEXIS 3308 (10th Dist. Sep. 30, 2022). An investigation … Continue reading
CT: Blood draw by nurse at hospital was not 4A search
The taking of a blood sample by a nurse at a hospital is not a Fourth Amendment search. State v. Ragalis, 2022 Conn. Super. LEXIS 2025 (New Britain Sept. 8, 2022). Custody under Miranda is not the same as a … Continue reading
MI: No RS for getting def out of car for a frisk
Defendant’s stop was justified, but getting him out of the vehicle for a frisk was not. Suppressed. People v. Turner, 2022 Mich. App. LEXIS 4943 (Aug. 18, 2022) (2-1). On the totality, defendant consented to an interview in his own … Continue reading
CA5: Being handcuffed during traffic stop for officer safety wasn’t “custody” for Miranda purposes
Defendant was handcuffed during a traffic stop for officer safety, and the officer’s on the street questions were not custodial for Miranda purposes. United States v. Coulter, 2022 U.S. App. LEXIS 19751 (5th Cir. July 18, 2022). This protective sweep … Continue reading
CA11: Reasonable mistake of law on basis for stop was not 4A violation
“An officer’s reasonable mistake of law—that is, when ‘the law turns out to be not what was thought’—can justify probable cause. [Heien] at 61-64. The officer ‘deserve[s] a margin of error’ when ‘the application of a statute is unclear—however clear … Continue reading
E.D.Va.: No RS for protective sweep of car for weapon
The officers lacked reasonable suspicion for a protective sweep of defendant’s car. His actions did not support any suggestion he might be armed. United States v. Trice, 2022 U.S. Dist. LEXIS 115463 (E.D. Va. June 29, 2022).* Defendant’s refusal to … Continue reading
CA9: Failure to deliver SW at scene of search violated Rule 41, but no suppression here
Failure to deliver the whole search warrant to defendant violated Rule 41(f)(1)(C), but it wasn’t deliberate so no suppression. United States v. Manaku, 2022 U.S. App. LEXIS 16337 (9th Cir. June 14, 2022). 2254 petitioner’s ineffective assistance of counsel for … Continue reading
CA9: Police participation in a probation search didn’t make it unreasonable
Homeland Security Investigations participating in a probation search did not make it unreasonable. United States v. Johnson, 2022 U.S. App. LEXIS 11999 (9th Cir. May 3, 2022). Defendant claims a Franks violation from a single misstatement in the affidavit for … Continue reading
Cal.: Exclusionary rule does not apply in child dependency litigation
The exclusionary rule does not apply in child dependency litigation. In re Christopher L., 2022 Cal. LEXIS 2313 (Apr. 25, 2022) (recognizing rule). “Hecke is correct that Detective Compton did not provide details of BSC’s criminal history or a description … Continue reading
CA8: Court can consider GFE rather than decide PC
“‘[T]his Court ‘may consider the applicability of the good-faith exception to the exclusionary rule,’ without addressing whether probable cause exists.” Here, there was enough to likely show probable cause so the officer reasonably believed in the validity of the warrant. … Continue reading
E.D.Tenn.: USDJ doesn’t second guess USMJ’s credibility determinations in the R&R
USDJ doesn’t second guess USMJ’s credibility determinations in the R&R on a motion to suppress. United States v. Bowman, 2022 U.S. Dist. LEXIS 69156 (E.D.Tenn. Apr. 14, 2022).* A bag left outdoors at an apartment complex for more than a … Continue reading
CA6: Failure to file state SW papers with clerk not 4A violation
Failure to file the state search warrant papers with the state clerk under state law is not a Fourth Amendment violation. United States v. Baker, 2022 U.S. App. LEXIS 9315 (6th Cir. Apr. 5, 2022). The signed affidavit being incorporated … Continue reading
OH11: No RS for frisking a slumbering motorist
Police were called to a man slumped over his steering wheel maybe passed out. They roused him. Defendant’s patdown was not justified by reasonable suspicion. State v. Shoenberger, 2022-Ohio-253, 2022 Ohio App. LEXIS 232 (11th Jan. 31, 2022). Defendant’s roadside … Continue reading
D.N.M.: Announcement of unlawful search here led to involuntary confession
“Here, the Agents did not, in the end, violate the Fourth Amendment. So, the question this Court confronts now is whether the announcement of an unlawful search, which is not in fact completed, render an elicited confession involuntary and inadmissible? … Continue reading
OR: When defense raises lack of oath or affirmation for SW, burden is on state to prove SW was properly issued
When the defense challenges the validity of the warrant for lack of oath or affirmation, that’s tantamount to a warrantless search allegation, so the court concludes the burden should be on the state to go forward. State v. Perrodin, 315 … Continue reading
DC: Grabbing one’s waistband while running from the police signals contraband, despite possible innocent explanations
Grabbing at one’s waistband while running from the police may have innocent explanations, too, but it signals contraband. Newman v. United States, 7-CF-520 (D.C. Sept. 2, 2021). A delay between the traffic stop and an ultimate search is not per … Continue reading
OH6: No RS as to def in a crowd in high crime area
Police arrived at a crowd on a parking lot in a high crime area. People were drinking in public and there was the smell of marijuana in the air, but none of that had anything to do with defendant. Thus, … Continue reading