- D.Nev.: Affidavits for SWs don’t have to prove the underlying crimes
- D.V.I.: Flyover of curtilage from navigable airspace was reasonable
- NJ: Disputes in the facts on appeal show trial court should have held a hearing
- NY: Second SW for phone a year later after first SW failed to show PC wasn’t timely
- GA: Not objecting to mention of “probation” search at trial was not IAC
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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
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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: Reasonable expectation of privacy
D.Colo.: Bank records have no REP so they can be obtained for restitution purposes
There is no reasonable expectation of privacy in bank records, and the government can obtain them to enforce a restitution order. United States v. Osborn, 2023 U.S. Dist. LEXIS 90076 (D. Colo. May 23, 2023). Defendant doesn’t get a Franks … Continue reading
CA6: Younger requires the federal case over an arrest or search be stayed, not dismissed
The district court improperly dismissed plaintiff’s case under Younger because of ongoing state proceedings it implicated. It should have stayed it instead. Neal El v. Showman, 2023 U.S. App. LEXIS 12604 (6th Cir. May 22, 2023). The Fourth Amendment does … Continue reading
D.Colo.: Racial profiling claim is relevant to officer’s credibility in a civil rights case
In a civil rights case, “Evidence of racial profiling (i.e., bias) by Trooper Padilla would tend to make the fact to which he is expected to testify (i.e., that Plaintiff failed the roadside sobriety tests and thus there was probable … Continue reading
N.D.Ala.: No REP in DEA’s license plate reader database
“First, Officer Josh Powers did not violate Toombs’ Fourth Amendment rights by accessing license plate reader data from the Department of Justice’s Drug Enforcement Administration System Information License (‘DEASIL’). Second, Powers had reasonable suspicion of criminal activity when he extended … Continue reading
D.V.I.: No REP against a flyover of a MJ grow
There was no objective reasonable expectation of privacy in a flyover of a marijuana grow operation. A warrant to flyover and photograph was not required. United States v. Soogrim, 2023 U.S. Dist. LEXIS 75183 (D.V.I. May 1, 2023). The court … Continue reading
CA8: Merely pointing a Taser not a seizure
Pointing a Taser at plaintiff was not a seizure. Pollreis v. Marzolf, 2023 U.S. App. LEXIS 10269 (8th Cir. Apr. 27, 2023). Even if possession of a firearm in a concealed carry state was not unlawful, smoking marijuana with a … Continue reading
S.D.Ill.: Strategy under Strickland for defense to admit SW affidavit into evidence
It was not unreasonable strategy for the defense to admit at trial the affidavit for his search warrant to challenge the quality of the investigation that the search produced nothing and the informant wasn’t reliable. He was acquitted of one … Continue reading
CA2: No REP shown in porch shared with neighbor
Defendant shared a porch with his neighbor and made no effort to show a reasonable expectation of privacy in it. United States v. Lewis, 2023 U.S. App. LEXIS 6689 (2d Cir. Mar. 21, 2023).* The exclusionary rule doesn’t apply in … Continue reading
E.D.La.: 4A and Art. III standing are distinct questions
Just because there’s no Fourth Amendment “standing” in bank records, that doesn’t mean that there’s no Article III standing to challenge interference with privacy in bank records. Hawkins v. Sanders, 2023 U.S. Dist. LEXIS 45000 (E.D. La. Mar. 16, 2023):
S.D.Cal.: Police declining to search on wife’s consent could follow her to spot and watch her do it without it being govt action
Under the two-part test, the Court finds that Ms. Valenzuela was not functioning as a government instrument at the time of her [*17] search. As to the first prong, the Chula Vista officers clearly “knew of” Ms. Valenzuela’s actions because … Continue reading
MA: Crack pipe seen in plain view of passenger compartment justifies search of whole car
“The question presented by this appeal is whether a State trooper’s plain view observation of a used crack pipe in a motor vehicle provides probable cause for a warrantless search of the entire vehicle for contraband drugs. Concluding that it … Continue reading
What we think of our reasonable expectation of privacy in cell phones
U.Chi. School of Law: The Myth of Fourth Amendment Circularity by Matthew B. Kugler & Lior Jacob Strahilevitz:
WI: REP in apt building’s storage room def shared with another that she put the lock on
Defendant had a reasonable expectation of privacy in an apartment’s basement storage room that was shared with another but which defendant put a padlock on. State v. Eder, 2023 Wisc. App. LEXIS 207 (Feb. 28, 2023). There was probable cause … Continue reading
D.Neb.: DTF officer’s moving luggage out of an interstate bus luggage hold wasn’t an unreasonable interference with possessory interest
Defendant was riding on an interstate bus, and at the stop at Omaha, a DTF officer pulled defendant’s bag out of the luggage hold to see who would claim it. This interference with the luggage was minimal and did not … Continue reading
D.Conn.: Govt’s mere allegation def has possessory interest in package doesn’t give him standing; he still has to show it
Defendant can’t rely on the government’s representation they believe he has a possessory interest in a parcel. He has to show it, and here he did not. United States v. Franco, 2023 U.S. Dist. LEXIS 18256 (D. Conn. Feb. 3, … Continue reading
CA1: No REP in guns hidden in house def wasn’t welcome at when he returned after being kicked out
Defendant stayed in a house with a domestic partner and her son until he was kicked out. He returned to assault her and hide guns there. He had no reasonable expectation of privacy in the premises. United States v. John, … Continue reading
USA Today: A camera mounted on a light pole took video of police beating Tyre Nichols. What to know about ‘SkyCop.’
USA Today: A camera mounted on a light pole took video of police beating Tyre Nichols. What to know about ‘SkyCop.’ by Claire Thornton:
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