- OR: For particularity in electronic devices, specify what will be found
- W.D.N.C.: Traffic stop for expired tags went right to criminal history and was overlong
- ID rejects “reasonable mistake of law” and Heien under state constitution; state’s exclusionary rule is broader
- CA6: Even if harassment was a basis to exclude a parole search, it wasn’t shown here
- ID: Drug dog putting feet on car door and window during stiff was a trespass on the chattel and the search should have been suppressed
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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
online since Feb. 24, 2003 Approx. 350,000 visits (non-robot) since 2012 Approx. 45,000 posts since 2003 (25,700+ on WordPress as of 12/31/22)
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"If it was easy, everybody would be doing it. It isn't, and they don't."
“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!”"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."
---Pepé Le Pew
—Johnson v. United States, 333 U.S. 10, 13-14 (1948)
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Category Archives: Issue preclusion
OH3: Look behind refrigerator during exigent entry was inadvertent plain view
The warrantless entry into defendant’s house was justified by the exigency of a child allegedly in peril, which was not in dispute. While waiting for paperwork to be completed, one officer could see slightly behind the refrigerator and saw packaged … Continue reading
OR: Cell phone SW in part for “evidence related to the crimes under investigation” was overbroad
The search warrant for defendant’s cell phone was specific as to particular images but general as to others, and it is suppressed as to the others. “The fact that the media command limited the media search to ‘evidence related to … Continue reading
D.Md.: Being handcuffed means one could believe he or she is not free to leave
Handcuffing a person is a sure sign they are not free to leave. Here, however, it was justified by defendant’s own actions. United States v. Johnson, 2023 U.S. Dist. LEXIS 22159 (D. Md. Feb. 8, 2023).* A successor habeas doesn’t … Continue reading
ND: Trial court’s finding of investigatory purpose for inventory search supported by record
The district court found that the purported inventory search was really for investigatory purposes, and the evidence supports that conclusion. The inevitable discovery exception also does not apply here. State v. Krall, 2023 ND 8, 2023 N.D. LEXIS 9 (Jan. … Continue reading
CA4: Failure to turn on bodycam before frisk not shown to be in bad faith
Officer’s failure to turn on his bodycam before frisk here doesn’t require an adverse inference of destruction of evidence. Bad faith isn’t shown. United States v. Aguirre-Cuenca, 2023 U.S. App. LEXIS 1105 (4th Cir. Jan. 18, 2023). Defendant’s appeal is … Continue reading
W.D.N.Y.: Moving car without PC for later dog sniff hours later tainted SW based on dog alert
Defendant’s vehicle was stopped and ultimately removed to another location for a dog sniff to get probable cause for a search warrant for the car. The removal was unreasonable and justified under the Fourth Amendment. The dog sniff was several … Continue reading
D.Minn.: Involuntary civil detainees in a sex offender program have no REP in their rooms
Involuntary civil detainees in a sex offender program have no reasonable expectation of privacy in their rooms. White v. Dayton, 2023 U.S. Dist. LEXIS 71 (D. Minn. Jan. 3, 2023). Habeas petitioner’s claim that a bad photo ID led to … Continue reading
E.D.Mich.: No sanction for automatic purge of bodycam video of this raid
The raid in this case was recorded on bodycams but the official retention policy at the time was to hold video for only 60 days unless it was flagged to be kept despite the fact that cases take longer than … Continue reading
M.D.Fla.: The fact a USMJ issued SW doesn’t preclude that judge from hearing a motion to suppress
The fact a USMJ issued a search warrant doesn’t preclude that judge from hearing a motion to suppress. United States v. Silva, 2022 U.S. Dist. LEXIS 233243 (M.D. Fla. Dec. 29, 2022). State court’s finding of procedural default on Fourth … Continue reading
OR: Computer hard drive with contraband could be destroyed with guilty plea
By defendant’s plea to a sex and child porn offense, the state could destroy the computer hard drives where the contraband was found. The seizure was in 2003, and the trial was 2017. State v. Forker, 323 Or. App. 323 … Continue reading
CA9: 4A requires no less intrusive measures for inventory
The officers impounding defendant’s vehicle weren’t constitutionally required to allow him to contact others to take possession of the vehicle for him. United States v. Anderson, 2022 U.S. App. LEXIS 35865 (9th Cir. Dec. 29, 2022). See Metropolitan News-Enterprise Three … Continue reading
CA3: SOL for arrest and search under § 1983 runs from then
The SOL begins with plaintiff’s arrest and search, not the prosecution. Here it was time-barred. (Plaintiff also doesn’t establish any grounds for equitable tolling other than the library was inaccessible during Covid, and he did nothing for over two years.) … Continue reading
NY1: When state doesn’t challenge standing, it’s taken as conceded
When the state doesn’t challenge standing, it’s taken as conceded. The trial court thus erred in deciding standing. People v. Bonilla, 2022 NY Slip Op 07304, 2022 N.Y. App. Div. LEXIS 7136 (1st Dept. Dec. 22, 2022). Defendant had his … Continue reading
CA11: No jurisdiction to enjoin investigation after execution of SW
A District Court has no anomalous jurisdiction to bar the government from using evidence seized with a search warrant in an investigation. There are other remedies at the appropriate time. Trump v. United States. 2022 U.S. App. LEXIS 33296 (11th … Continue reading
D.S.D.: Totality of circumstances showed def likely resided in dwelling for entry on arrest warrant
Based on the totality of circumstances, officers finally had good reason to believe defendant resided in the dwelling he was found in, and the arrest warrant alone was enough to justify entry. United States v. Ulrich, 2022 U.S. Dist. LEXIS … Continue reading
N.D.Ind.: Franks hearing ordered over officer’s claim of smell of MJ
Defendant gets a Franks hearing even if to rebut the government’s claim the good faith exception applies. The affiant officer claimed there was an “overwhelming” smell of marijuana coming from defendant’s house as they approached for a knock-and-talk, which was … Continue reading
E.D.Va.: Could have seen for plain view isn’t the same as actually seeing
Defendant did not abandon the vehicle he was driving with permission of the owner. When officers asked for consent he said it wasn’t his and it was his “baby mama’s” vehicle. Her permission gave him standing. The court disagrees with … Continue reading
W.D.Ky.: Clerical error in filestamp of SW return not prejudicial error
Relying on a file mark stamp on a search warrant return that was a year and a few days earlier, defendant claims the issuing judge and officers conspired to back date everything to coverup an illegal search. That’s speculative. The … Continue reading