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- W.D.Ark.: Parole search waiver moots lack of PC argument
- AR: RS shown for boating while intoxicated stop
- W.D.Mo.: Wrong address in SW wasn’t fatal where right house was searched
- NY: Failure to show independent source for officer’s observation of def required reversal
- VA: Outline of a gun in def’s pocket was RS
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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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--Electronic Communications Privacy Act (2012)
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Section 1983 Blog -
"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: Abstention
CA11: Carpenter not retroactive for a successor habeas
Carpenter not retroactive for a successor habeas. In re Symonette, 2019 U.S. App. LEXIS 20428 (11th Cir. July 9, 2019):
D.Conn.: Ptf’s § 1983 case over his search that led to his conviction is barred by Heck
Plaintiff’s suit against his search and seizure that led to his conviction is barred by Heck v. Humphrey. “The appropriate vehicle for such a challenge is not § 1983 litigation, but direct or collateral appeal.” Gonzalez v. Yepes, 2019 U.S. … Continue reading
S.D.Ind.: Def’s 2255 4A IAC claim was speculative at best and denied
Defendant claims his attorney was ineffective for failing to tell him about a possible motion to suppress, and, thus, he wouldn’t have pled guilty. The court, however, finds no facts anywhere in the case supporting even an inference there was … Continue reading
OH10: Two year old email wasn’t stale for CP SW probable cause
A two year old incriminating e-mail was not stale for a child pornography search warrant. State v. ShaskusState v. ShaskusState v. Shaskus, 2019-Ohio-2190, 2019 Ohio App. LEXIS 2273 (10th Dist. June 4, 2019). Defense counsel acted reasonably in foregoing appealing … Continue reading
OH10: Aside from the SW for def’s house, there was PC to stop him in his car leaving for his arrest
Officers had a search warrant for defendant’s premises. Based on a controlled buy, there was also probable cause to independently stop him leaving his own house. State v. Taylor, 2019-Ohio-2018, 2019 Ohio App. LEXIS 2088 (10th Dist. May 23, 2019). … Continue reading
S.D.Tex.: Ptf’s suit against his investigation is barred by Younger abstention
Plaintiff’s suit against his investigation is barred by Younger abstention, too. It doesn’t require a pending case. Cook v. Harris County, 2019 U.S. Dist. LEXIS 87297 (S.D. Tex. May 23, 2019):
CA5: GFE wasn’t raised or litigated below so it’s not considered on appeal
The district court’s findings on the search were not clearly erroneous. The good faith exception wasn’t raised in the district court, and not on appeal so it’s waived. United States v. Taylor, 2019 U.S. App. LEXIS 14644 (5th Cir. May … Continue reading
CA5: Civil rights suit over entry, search, seizure, and arrest implies invalidity of state conviction and were barred
“Thus, success on Weems’s unlawful entry, search, seizure, and arrest claims would necessarily imply the invalidity of his convictions. See Heck, 512 U.S. at 487; Hudson v. Hughes, 98 F.3d 868, 872 (5th Cir. 1996). Because Weems’s false reporting and … Continue reading
OH12: Package in transit was reasonably briefly detained for dog sniff
Briefly detaining a package in transit at least on reasonable suspicion for a dog sniff was reasonable and not a seizure of the package. They were staying at a local B&B and received two FedEx packages there, one under an … Continue reading
S.D.Ga.: Heck explained in 4A terms
Explaining Heck: This case involves alleged illegally admitted statements, but it’s explained in terms of the Fourth Amendment. Edwards v. Perry, 2019 U.S. Dist. LEXIS 74480 (S.D. Ga. May 3, 2019):
E.D.Cal.: § 1983 4A prison claim is an attack against his disciplinary proceeding and barred by Heck
Plaintiff’s § 1983 Fourth Amendment prison claim is an attack against his disciplinary proceeding and barred by Heck. Lout v. Sidhu, 2019 U.S. Dist. LEXIS 74550 (E.D. Cal. May 3, 2019).* Claimant has no standing to challenge the seizure before … Continue reading
N.D.Ohio: State searches can make federal cases; Younger doesn’t work in reverse
Federal courts can get jurisdiction to try cases involving searches conducted by state officers. This isn’t Younger v. Harris in reverse. Green v. United States, 2019 U.S. Dist. LEXIS 70988 (N.D. Ohio Apr. 27, 2019). A warrant for drug rehab … Continue reading
CA9: Ostensibly Heck barred claim at least has to be filed to toll the statute of limitations
An ostensibly Heck barred claim at least has to be filed to toll the statute of limitations. Then it can be stayed. Mills v. City of Covina, 2019 U.S. App. LEXIS 11948 (9th Cir. Apr. 23, 2019). There was probable … Continue reading
S.D.Fla.: Younger abstention bars a § 1983 case over the search of plaintiff while the state criminal case is pending
Younger abstention bars a § 1983 case over the search of plaintiff while the state criminal case is pending. Ford v. Brookins, 2019 U.S. Dist. LEXIS 66694 (S.D. Fla. Apr. 19, 2019). Qualified immunity was properly denied based on the … Continue reading
W.D.Va.: Proving the Heck bar requires defs to put copies of underlying documents into the record
Defendants don’t get the benefit of a Heck bar without putting the papers of the underlying case into evidence. “As stated, court records online indicate that two felony drug charges have been dismissed. Without copies of relevant court documents and … Continue reading
CA5: Ptf’s 4A claims were Heck barred because they would interfere with the state prosecution.
Plaintiff’s Fourth Amendment claims were Heck barred because they would interfere with the state prosecution. Shipman v. Sowell, 2019 U.S. App. LEXIS 8736 (5th Cir. Mar. 23, 2019):
CA9: Younger abstention applied except to ptf’s 4A claim because it wouldn’t enjoin state proceedings
Younger abstention was properly granted, in part, because the state nuisance proceeding was a civil enforcement proceeding within the scope of Younger, the state proceedings implicated important state interests, the state proceedings provided an adequate opportunity for the state action … Continue reading