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- CA5: Even if parole search was to aid criminal investigation, it was still reasonable
- IN: Cell phone linked to murder by TM sent before; PC for search
- C.D.Cal.: Inquiry into actions of others besides the officers involved in search is a new Bivens claim and barred
- D.Minn.: Regular CI had “extensive knowledge of street gangs, firearms, and narcotics distribution”; there was PC
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ABA Journal Web 100, Best Law Blogs (2017); ABA Journal Blawg 100 (2015-16) (discontinued 2018)
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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
www.johnwesleyhall.com -
© 2003-24,
online since Feb. 24, 2003 Approx. 425,000 visits (non-robot) since 2012 Approx. 45,000 posts since 2003 (26,730+ on WordPress as of 12/31/23) -
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Fourth Amendment cases,
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--Electronic Communications Privacy Act (2012)
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"If it was easy, everybody would be doing it. It isn't, and they don't."
—Me -
"Life is not a matter of holding good cards, but of playing a poor hand well."
–Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others) -
“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!”
---Pepé Le Pew "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."
—Johnson v. United States, 333 U.S. 10, 13-14 (1948)
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Category Archives: Private search
CA7: CI identity irrelevant because of controlled buys
This case is about fentanyl on defendant’s person, so the identity of the CI that led police to him is irrelevant under Roviaro. Controlled buys justified his arrest. United States v. Johnson, 2024 U.S. App. LEXIS 4450 (7th Cir. Feb. … Continue reading
KY: Misstatements of law not subject to Franks challenge
A misstatement of law is not subject to a Franks challenge. Search warrant affidavits are usually drafted in a hurry by nonlawyers, and it’s up to the issuing magistrate to decide whether there is a substantial basis for believing a … Continue reading
D.P.R.: Cut-and-paste error that misidentified iPhone model overlooked by correct phone number
The search warrant was for a specific phone number on an iPhone 6S, but the phone with that number was an iPhone 13. Still, the phone number controlled, and the search was valid. Alternatively, on the totality, defendant consented to … Continue reading
CA2: Where PC and GFE found by District Court, both have to be argued on appeal or waiver occurs
The district court found probable cause and the good faith exception applied. On appeal, he argued only probable cause. The alternative ground of good faith was thus waived and the court can affirm. United States v. McGregor, 2024 U.S. App. … Continue reading
N.D.Cal.: Passwords are protected by the Stored Communications Act
In civil case for evidence production brought in San Francisco to aid litigation in Ontario, Canada. the court holds that account passwords are protected by the Stored Communications Act and there was no consent to disclosure. In re Path Network, … Continue reading
CA7: Hospital medical staff getting def to spit out machine gun part wasn’t search and they weren’t govt actors
Defendant had a Glock fully auto switch in his mouth while in the hospital. While treating him, the medical staff finally got him to spit it out. That was not a search. The medical staff were not government actors for … Continue reading
TN: No IAC to distance def from property of another and claim no standing
Defense counsel wasn’t ineffective for not filing a motion to suppress property that wasn’t his but where he spent time. The trial strategy was to distance defendant from the property, and asserting a reasonable expectation of privacy in the property … Continue reading
D.Haw.: 11-month delay in getting DNA warrant was reasonable
An eleven month delay in the government obtaining a DNA warrant was reasonable. “Under the totality of the circumstances, the Court concludes that, while the search warrant perhaps could have been sought earlier, the eleven-month period between arrest and the … Continue reading
OH9: No justification needed for police to run an LPN number
No justification needed for police to run a LPN number. State v. Carter, 2023-Ohio-3452, 2023 Ohio App. LEXIS 3360 (9th Dist. Sept. 27, 2023). The court takes the government at its word that the search warrant defendant seeks doesn’t exist, … Continue reading
CA3 adopts two part functional rule of private search, and this one was
Defendant’s wife was not acting as an agent of the state when she procured defendant’s cell phone which produced evidence of sexual exploitation of a child. “Four of our sister Courts of Appeals assess whether a private party was an … Continue reading
N.D.Ga.: UPS a private searcher, even with its “good-Samaritan motivation”
UPS is not a state actor when it searches suspicious packages, even with its “good-Samaritan motivation” that “overlaps with law enforcement’s mission.” United States v. Baxter, 2023 U.S. Dist. LEXIS 93141 (N.D. Ga. May 11, 2023):
D.Nev.: Affidavits for SWs don’t have to prove the underlying crimes
There was probable cause for the four search warrants here. “Much of Martinez’s arguments are based on the premise that the warrants are unsupported by probable cause because the affidavits did not prove the elements of the target crimes.” They … Continue reading
E.D.Pa.: Hospital nurse who found drugs on def wasn’t state actor
A nurse in a hospital who found drugs in defendant’s pants was required by policy to search the rest of his belongings. The nurse was not a state actor. United States v. Kunsman, 2023 U.S. Dist. LEXIS 84362 (E.D. Pa. … Continue reading
TN: Bounty hunter is not a state actor for 4A
A bailbond bounty hunter is not a state actor for the Fourth Amendment. State v. Wojnarek, 2023 Tenn. Crim. App. LEXIS 160 (May 10, 2023). A Delaware JP issued this search warrant, and it was with probable cause. United States … Continue reading
D.Minn.: Govt’s failure to raise issue before USMJ was waiver
The government’s failure to raise arguments before the USMJ was waiver when appealed to the USDJ. United States v. Crutchfield, 2023 U.S. Dist. LEXIS 80461 (D. Minn. May 9, 2023). There was probable cause for the search warrant here. It … Continue reading
CA5: 4A doesn’t apply to a letter carrier
“In co-defendant Johnlouis’s case, our court upheld the denial of the motion to suppress because we determined that the letter carrier was ‘not a government actor to whom the Fourth Amendment applies.’ United States v. Johnlouis, 44 F.4th 331, 337 … Continue reading
CA10: Def’s response ‘I don’t have a backpack’ was abandonment of the backpack
“Mr. Porter nonetheless attempts to distinguish this case from our other abandonment cases, claiming that in those cases, the defendant’s denial of ownership was clear and unequivocal. But it is hard to imagine a statement plainer than ‘I don’t have … Continue reading
CO: LEOs didn’t expand on private search
A private party found video of a sexual assault on defendant’s computer and provided it to law enforcement. A search warrant wasn’t needed for law enforcement to view that file. People v. Morse, 2023 COA 27, 2023 Colo. App. LEXIS … Continue reading
D.N.M.: Search warrants are directed at places, not persons; offender need not be mentioned
Search warrants are directed at places, not persons. “Because, at the time of the oral affidavit, there was a fair probability the crime of kidnapping occurred and a fair probability evidence of that crime would be found in Defendant’s home … Continue reading
OH5: EMT wasn’t state actor for 4A purposes in detaining def
A paramedic kept defendant from driving after an accident because defendant was too impaired to drive. That was not a government seizure, even if the paramedic was a state actor. State v. Cruz, 2023-Ohio-794, 2023 Ohio App. LEXIS 760 (5th … Continue reading