- N.D.Ga.: Failure to specify how the R&R was deficient on PC finding was waiver
- Ga.Bar J.: Who Should Guard the Attorney-Client Privilege When Documents are Seized by Law Enforcement,
- 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
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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: Waiver
CA1: Waiver of 4A claim in lower court is waiver for appeal
Defendant explicitly waived his Fourth Amendment claim in the district court, so he can’t appeal it. United States v. Concepcion-Guliam, 2023 U.S. App. LEXIS 5830 (1st Cir. Mar. 10, 2023). Delaware’s loitering statute gives the officer the right to ask … Continue reading
OH8: Not following up on obvious window tint violation didn’t make stop for that unreasonable
The officer reasonably believed the car’s tint violated the law because he literally could not see in it. The fact he didn’t follow up more on that doesn’t make it pretext. State v. McDonald, 2023-Ohio-464, 2023 Ohio App. LEXIS 444 … Continue reading
AR: Search incident to sex offense produced microSD cards that could be seized
Defendant was arrested for a sex offense, and his search incident produced three microSD cards that fell to the ground. They were properly seized and then searched with a warrant finding child porn. Lewis v. State, 2023 Ark. 12, 2023 … Continue reading
E.D.Va.: No 4A right to notice before a search occurs; state search law inapplicable in federal court
Defendant’s Fourth Amendment claim is that he was given no notice that his phones had been searched, citing Virginia law, which is irrelevant in a federal prosecution, even though state officials did all the searching. There’s no constitutional right to … Continue reading
IN: Fundamental (plain) error of S&S claims requires the evidence be fabricated, not just unconstitutionally obtained
The fundamental error avenue to appeal an unobjected to search and seizure claim requires a showing that the evidence was all fabricated, not just that the search was bad. Evidence obtained by search and seizure is usually highly relevant to … Continue reading
E.D.Cal.: Def had standing in car he was driving with permission of owner
As the driver of the car and the person with lawful possession, defendant had standing to challenge the search of the car he didn’t own. The GPS warrant for it was based on probable cause, and the warrant for firearms … Continue reading
CA8: Post-trial assertion of 4A issue was waived
Defendant’s post-trial claim that the tracking warrant used to find him expired three weeks before the arrest was waived by not having been filed pretrial. Even if plain error is applied, “we agree with the district court there was no … Continue reading
M.D.Ga.: Officer isn’t obliged to mention he could smell marijuana coming from the car
An officer smelling marijuana in a car isn’t obliged to tell the motorist he could for it to be true. United States v. Perkins, 2023 U.S. Dist. LEXIS 10564 (M.D. Ga. Jan. 19, 2023). At worst, the officer’s false statement … 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
E.D.Tenn.: 11 day delay in getting computer SW not unreasonable
Depending on how one counted the time between the seizure of the cell phone and the search warrant, it was either 3 or 11 days, and either is reasonable. United States v. Deakins, 2023 U.S. Dist. LEXIS 6661 (E.D. Tenn. … Continue reading
CA5: No suppression for no-knock violation
There is no suppression remedy for an unjustified no-knock warrant. United States v. Bryant, 2023 U.S. App. LEXIS 355 (5th Cir. Jan. 6, 2023). Defendant didn’t enter a conditional plea, so his guilty plea waived his Fourth Amendment claim. United … Continue reading
D.Minn.: All theories to suppress must be raised to USMJ on referral or it’s waived
Defendant’s storage unit had the doors and handles tested with Ion Scanning. He had no reasonable expectation of privacy in that. Before the USDJ, however, he raised it was a trespass to do it as the officers did. That’s waived … Continue reading
N.D.Okla.: NCIS SW in Japan as violation of Posse Comitatus Act was waived by guilty plea
Defendant was the subject of an NCIS search warrant while stationed in Japan. That led to his prosecution in the Northern District of Oklahoma. His guilty plea waived his claim the Posse Comitatus Act was somehow violated. United States v. … Continue reading
CA7: Pro se letter to court to preserve search claim wasn’t conditional plea
Defendant pled to the indictment, having written a letter to the court that he wanted to preserve his search claim. His pro se letter did not satisfy the conditional plea rule. United States v. Turner, 2022 U.S. App. LEXIS 35476 … Continue reading
WI: When statute or ordinance on which search was based is challenged, AG or city must be present
When challenging the constitutionality of an ordinance or statute as making a search and seizure unreasonable, defendant must join the city or notify the AG to participate. Without it, that’s waiver. “Because Raddemann has not shown compliance with Wis. Stat. … Continue reading
N.D.Cal.: Attic apt and treehouse not specified in SW, but searches there still reasonable
An attic apartment and a treehouse were not specifically within the terms of the warrant, but the search was still reasonable. United States v. Ayala, 2022 U.S. Dist. LEXIS 227976 (N.D. Cal. Dec. 19, 2022). Defendant didn’t timely challenge his … Continue reading
OR: Even constitutional challenges need to be preserved below
Even constitutional challenges need to be preserved below. Jimenez v. Dep’t of Revenue, 370 Or. 543 (Dec. 15, 2022). The court does not find the officer’s testimony credible. He claimed he saw defendant with binoculars from 100′ away buying liquor … Continue reading
CA3: Scope of curtilage argument changed on appeal and thus waived
This case involved an argument about what is curtilage around a tent and firepit. Explosives were found outside this curtilage. On appeal, the scope of curtilage changed, and it’s waived. United States v. Madziarek, 2022 U.S. App. LEXIS 34076 (3d … Continue reading