- 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
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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 suspicion
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
A warrantless Fourth Amendment “search” occurred when the police drug-sniffing dog trespassed against defendant’s vehicle for the purpose of obtaining information about, or related to, the vehicle. When the dog approached the driver’s side on his second pass, he clearly … Continue reading
D.N.M.: Three days of warrantless real time CSLI was reasonable because of exigency
Three days of real time CSLI was obtained by the police because of a missing child, and it was reasonable as exigency. United States v. Torres, 2023 U.S. Dist. LEXIS 44017 (D.N.M. Mar. 15, 2023).* No qualified immunity for Tasing … Continue reading
NY1: Announcing “NYPD arrest warrant” after entry through an unlocked door violated knock-and-announce
Announcing “NYPD arrest warrant” after entry through an unlocked door violated the state statute on knock-and-announce. People v. Jones, 2023 NY Slip Op 01262, 2023 N.Y. App. Div. LEXIS 1248 (1st Dept. Mar. 14, 2023). A successor 2255 petition based … Continue reading
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
D.N.M.: Lesser intrusive means to towing and inventory not constitutionally required
Lesser intrusive means to towing and inventory are not constitutionally required under Bertine. And here, the traffic stop was legal under Glover because the driver of the unregistered vehicle was the same gender as the registered owner. United States v. … Continue reading
Psychology Today: Legal Reasonable Suspicion Rests on Unreasonable Assumptions
Psychology Today: Legal Reasonable Suspicion Rests on Unreasonable Assumptions by Melissa Anderson & Cynthia J. Najdowski (“Stereotypes about people of color may be limiting Fourth Amendment protections.”):
E.D.Mo.: Officers don’t have to rely on occupants’ word that others aren’t present to be able to conduct a protective sweep
Officers don’t have to rely on occupants’ word that others aren’t present to be able to conduct a protective sweep. Apparent authority to consent and inevitable discovery also apply. United States v. Lewis, 2023 U.S. Dist. LEXIS 30938 (E.D. Mo. … Continue reading
CA: Unreasonable stop and running warrants revealed def was on parole; suspicionless parole search unreasonable
A man on the street was stopped by police for no apparent reason. A records check revealed he was on parole with a warrantless search waiver on file. The warrantless search of his person was unreasonable, and the exclusionary rule … Continue reading
S.D.Tex.: Exigency still remained for a second protective sweep of the premises
Enough exigency still remained for a second protective sweep of the premises. United States v. Beard, 2023 U.S. Dist. LEXIS 29007 (S.D. Tex. Feb. 22, 2023). Collective knowledge from another police department can be relied up to show probable cause. … Continue reading
CA9: Denying owner access to an impounded car for 30 days is an unreasonable seizure
Denying access to one’s car for 30 days after impoundment without justification was an unreasonable seizure under the Fourth Amendment. Untalan v. Stanley, 2023 U.S. App. LEXIS 4070 (9th Cir. Feb. 22, 2023). CI information led to surveillance then two … Continue reading
W.D.N.Y.: Using flashlight to look in bag tossed in flight in a house was reasonable on protective sweep
Use of a flashlight in a protective sweep of a black bag tossed by a fleeing suspect in the house was reasonable for safety reasons. Inside, methamphetamine was found. United States v. Adams, 2023 U.S. Dist. LEXIS 28537 (W.D.N.Y. Feb. … Continue reading
IA: With a judicial finding of PC, there’s no immediate right to release on bail without a bail hearing
There was probable cause for arrest involving a magistrate’s issuance of the warrant. Because there is probable cause, there’s no right to immediate release on bond under the state and federal constitutions’ bail provisions. Howsare v. Iowa Dist. Court for … Continue reading
W.D.N.Y.: 108-day delay in SW for cell phone was unreasonable
An unreasonable 108-day delay in retrieving defendant’s cell phone from local police after the DEA adopted the case required suppression of the search of the phone. United States v. Adams, 2023 U.S. Dist. LEXIS 23973 (W.D.N.Y. Feb. 13, 2023). Officers … Continue reading
D.Colo.: Date range isn’t always required by 4A for particularity of cell phone SW
In a cell phone search warrant, “Although Trujillo argues that the date range from May 16, 2022, to present lacked ‘legal justification,’ Trujillo provides no explanation or authority as to how this date range rendered the warrant unconstitutionally general. There … Continue reading
D.Ariz.: Holding on to DL too long during traffic stop required RS
The traffic stop was justified, as was running the DL. However, the officer held on to the license too long and extended the stop without ending it. The continuation of the stop lacked reasonable suspicion. United States v. Serna, 2023 … Continue reading
N.D.Miss.: Geofence warrant approved in 2018 USPS truck robbery
A geofence warrant is sustained on probable cause and particularity in a post office truck robbery where the driver was beaten in United States v. Smith, 2023 U.S. Dist. LEXIS 22944 (N.D. Miss. Feb. 10, 2023). While some later steps … 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