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- LA4: Merely having a concealed firearm isn’t RS for a frisk
- OR: Merely driving off the road wasn’t RS, but adding the driver’s demeanor at the time was
- OH6: Trial court’s failure to explain RS under Rodriguez required remand
- CA6: Asking def before a patdown during arrest what he had on him wasn’t barred by Miranda
- NY Queens: PC shown for SW blood drawn at hospital after car wreck
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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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--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: Abandonment
D.Conn.: State constitutional argument has no basis in federal prosecution
In a federal case, defendant’s argument the state Constitution was violated in his search means nothing in a federal criminal prosecution. The search was valid under the Fourth Amendment’s collective knowledge doctrine, and it was properly limited in scope. United … Continue reading
MS: Never getting ruling on motion to suppress is waiver
A motion to suppress where defendant never seeks a ruling on it is waived. McCollum v. State, 2023 Miss. LEXIS 238 (Sep. 7, 2023). The state search warrant application showed probable cause for a warrant for defendant’s devices for internet … Continue reading
CA5: Riley does not apply to border searches of cell phones
The search of defendant’s cell phone at the border was reasonable. The court will not apply Riley to border searches. Malik v. United States Dep’t of Homeland Sec., 2023 U.S. App. LEXIS 21307 (5th Cir. Aug. 15, 2023). “The undersigned … Continue reading
CA11: Lawyers were arrested for interfering with cell phone search
In a CPS-type case, there was a search warrant for two cell phones with alleged child pornography on them, and officers were going to execute them outside a hearing in the courthouse. Watching on surveillance video, officers saw the phones’ … Continue reading
CA3: Saying “this is not my backpack” when shown it during traffic stop is abandonment
“Small abandoned his legitimate expectation of privacy in the backpack. Although Small arguably demonstrated a subjective expectation of privacy by attempting to hide the backpack under his seat (though this act could also be viewed as an effort to physically … Continue reading
D.Vt.: Hiding a fanny pack in a trash can from the police was abandonment without evidence of intent to recover it
Defendant put a fanny pack in a trash can when the police were around. Without evidence he intended to retrieve it, it is treated as abandoned property that he has no standing in. United States v. Moffitt, 2023 U.S. Dist. … Continue reading
OH1: Exclusionary rule doesn’t apply to statutory violations
The exclusionary rule applies only to constitutional violations, not statutory, and a violation of the probation search statute is not subject to exclusion. State v. Borger, 2023-Ohio-2025, 2023 Ohio App. LEXIS 2044 (1st Dist. June 21, 2023). “While we note … Continue reading
TX9: Affidavit for a SW is a public record
The affidavit for a search warrant is a public record. $49,815.00 in United States Currency v. State, 2023 Tex. App. LEXIS 3775 (Tex. App. – Beaumont June 1, 2023). Defendant did not “distance himself” from the bags in the car … 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
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
E.D.Pa.: Homeowner can be handcuffed during home search without his being arrested
Having the homeowner in handcuffs during a search of his house and then releasing him when done is reasonable under Michigan v. Summers. Armstrong v. Gretsky, 2023 U.S. Dist. LEXIS 63028 (E.D. Pa. Apr. 11, 2023). Defendant parolee tried to … Continue reading
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
S.D.Ill.: Running away from a stopped car saying it’s not yours is abandonment
Defendant was stopped for overtinted windows and speeding. He got out and refused to get back in. Finally, he ran away saying the car was not his. That’s abandonment. United States v. Wiley, 2023 U.S. Dist. LEXIS 22439 (S.D. Ill. … Continue reading
W.D.Tex.: Tasering a suspect before search of the person didn’t taint the search
Tasering a suspect before a search of the person doesn’t taint the search. They were unconnected. United States v. Turner, 2023 U.S. Dist. LEXIS 12453 (W.D. Tex. Jan. 25, 2023).* Defendant in his 2255 doesn’t show ineffective assistance of counsel … Continue reading
IL: Even with recreational MJ, smell in a car can provide PC; pre-rec precedent adhered to
Even with recreational marijuana, it has to be transported in odor proof containers, and that means the smell of marijuana remains probable cause in Illinois. People v. Hall, 2023 IL App (4th) 220209, 2023 Ill. App. LEXIS 12 (Jan. 25, … Continue reading
CA3: Delaware “hit and hold” practice for entries not decided because of consent
The court declines to decide the officers’ “hit and hold” entries where they entered without a warrant but under alleged exigency, secured the premises, and then sought a search warrant. Because there was independent justification for the warrantless search after … Continue reading
MN: “Deer-in-the-headlights” look is a factor in RS
“But statements about a deer-in-the-headlights facial expression are commonplace in caselaw assessing whether a police officer has articulable, reasonable suspicion to justify a stop under the Fourth Amendment. There are over a dozen federal appellate decisions, including an opinion from … Continue reading
AL: When def was being taken to ER for chest pains, looking in pocket of jacket he wanted to take and a pill bottle inside was reasonable
Complaining of chest pains, defendant called 911. Attached to his address was a “safety alert” that police should show up for the safety of EMTs and firemen. As he was being transported to the hospital, he asked for his coat … Continue reading