- 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: Standing
W.D.N.C.: Traffic stop for expired tags went right to criminal history and was overlong
The court adopts the R&R and finds that the traffic stop was initially justified, but the officer got way off track from it into investigating other things without reasonable suspicion. Instead, the officer was investigating defendant’s criminal history for 46 … 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):
E.D.La.: No standing in car with stolen LP and no explanation for why driving it
“The Government, however, also provided evidence that the vehicle is not titled to Duncan and had a stolen license plate, arguing that these facts in conjunction establish that while Duncan possessed the vehicle, there is nothing to suggest he did … Continue reading
M.D.Ga.: No standing in packages sent to one’s address but with all different names on them
Defendant failed to show standing in packages searched coming to an address he claimed as his “primary address,” but the addressee and sender were not him. United States v. Williams, 2023 U.S. Dist. LEXIS 26755 (M.D. Ga. Feb. 16, 2023). … Continue reading
M.D.Ala.: A Franks challenge that appears only to be an attempt to examine the CI fails
Defendant’s Franks challenge fails on recklessness. Moreover, it really is just a desire to cross-examine the CI. “Neal’s request for a Franks hearing also falls short for a separate, independent reason: contrary to the requirements of Franks, Neal’s application for … 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
CA5: GFE to scope of search moots inquiring into PC
Because the good faith exception applied to the scope of search, the merits of the justification for the warrant is moot. United States v. Edwards, 2023 U.S. App. LEXIS 1032 (5th Cir. Jan. 17, 2023). A passenger didn’t have standing … Continue reading
CA6: Anonymous tip shown reliable enough for probation search
This anonymous tip of criminality of a probationer was shown to be reliable enough for reasonable suspicion. United States v. Rogers, 2023 U.S. App. LEXIS 786 (6th Cir. Jan. 11, 2023). Defendant is accused of vandalizing the Anchorage Jewish Museum. … Continue reading
E.D.Wis.: Being a corporate official alone doesn’t confer standing
Defendants are corporate officials of a business that was searched. That fact alone doesn’t give them standing, and the motion papers don’t really help. This is a search under a warrant, and the defendants carry the burden on standing and … Continue reading
OH: Opening car door was to secure uncooperative def, not search; plain view valid
Opening the car door was not for the purpose of searching; it was to secure the uncooperative defendant. During the interaction, evidence in plain view was seen and the officer then could enter the car to secure it. State v. … Continue reading
CA8: No standing to challenge GPS already installed in CS’s car he borrowed
Defendant had no standing to contest installation of a GPS by the CS in the vehicle he loaned to defendant. Jones specifically recognized this. United States v. Dewilfond, 2022 U.S. App. LEXIS 33273 (8th Cir. Dec. 2, 2022). Defendant was … Continue reading
E.D.Tenn.: There is no standing in CSLI of another’s phone
No standing to challenge acquiring the CSLI of another’s cell phone. United States v. Lopez, 2022 U.S. Dist. LEXIS 215709 (E.D. Tenn. Oct. 24, 2022),* adopted, 2022 U.S. Dist. LEXIS 214604 (E.D. Tenn. Nov. 29, 2022).* Defendant’s guilty plea waived … Continue reading
E.D.Ark.: “Place of residence” for a parole search of an absconder includes a motel room he’s staying in
The “place of residence” for a parole search of an absconder includes a motel room he’s staying in. He also has no standing to challenge a search of a trash can outside the room. United States v. Nichols, 2022 U.S. … 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
NC: Dog sniff of package in mail stream reasonable
A dog sniff of a package in the mail stream is reasonable. There is no reasonable expectation of privacy from a dog sniff there. State v. Teague, 2022-NCCOA-600, 2022 N.C. App. LEXIS 748 (Nov. 1, 2022). Defendants’ motion in limine … Continue reading
D.S.D.: Traffic stop immediately moved into being a drug investigation without RS and was unreasonable
Defendant’s stop was for not having an LPN and a cracked windshield. There was a temporary permit for the vehicle and the crack wasn’t obstructing vision. Bringing in a drug dog for a sniff of car was unreasonable. The officer … Continue reading
D.N.J.: Encountering 4 officers at landing on stairs who wouldn’t let him pass was a seizure
Defendant encountered four officers standing on a landing, and they impeded his movements. This amounted to a seizure. United States v. Jackson, 2022 U.S. Dist. LEXIS 194856 (D.N.J. Oct. 26, 2022). Mistaken identity on the person being seized is usually … Continue reading
OH9: Def opened a safe for the police but never argued he had a REP in the contents so no standing
Defendant opened a safe for the officers. His wife said that it was hers and she had it before they were married. Defendant didn’t even argue he had a reasonable expectation of privacy in the safe. Therefore, he didn’t show … Continue reading
TN: No IAC: strategic choice to distance def from premises
Defense counsel wasn’t ineffective for not challenging the search of the premises. The defense at trial was that defendant was merely a guest who didn’t have control of the stuff found there. To link defendant more to the premises was … Continue reading