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- S.D.Ohio: Defense of denial of possession in drug case meant no assertion of standing to challenge the search, so no IAC
- N.D.Okla.: Anticipatory tracking warrant for money counter is without authority and nexus is speculative even if not
- CA9: Supervised release condition of financial disclosure permitted under 18 U.S.C. § 3553(a) and didn’t violate 4A
- N.D.Ohio: Refusing discovery on 4A grounds in forfeiture case results in no standing
- thedrive.com: Police Are Tagging Fleeing Cars With GPS Darts to Avoid Dangerous Pursuits
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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: Probation / Parole search
CA8: “[E]ven if a technical violation of Nebraska law occurred when signing the warrant that is not a basis for suppressing the evidence” under 4A
“[E]ven if a technical violation of Nebraska law occurred when signing the warrant that is not a basis for suppressing the evidence” under the Fourth Amendment. United States v. Becker, 2022 U.S. App. LEXIS 35626 (8th Cir. Dec. 27, 2022). … Continue reading
NY3: On parole out of your county and lying about travels RS for parole search
Defendant was on parole and stopped outside his residence county. That was reasonable suspicion for a parole search. Plus, defendant’s multiple and inconsistent explanations about his travels, which the police officers knew were false, coupled with his parole situation and … Continue reading
CA3: Scope of curtilage argument changed on appeal and thus waived
This case involved an argument about what is curtilage around a tent and firepit. Explosives were found outside this curtilage. On appeal, the scope of curtilage changed, and it’s waived. United States v. Madziarek, 2022 U.S. App. LEXIS 34076 (3d … Continue reading
Cal.3d: Parole search of glove compartment of car where parolee was backseat passenger was unreasonable
The parole search of a car’s glove compartment because of a parolee backseat passenger was unreasonable. Because the glove compartment was locked, it wasn’t possible for the key in the ignition to be used to unlock it while the vehicle … Continue reading
OH1: Failure to follow probation search statute doesn’t require exclusion
Defendant’s argument that the probation search statute wasn’t followed doesn’t require exclusion. That’s for constitutional violations. State v. Clardy, 2022-Ohio-4300, 2022 Ohio App. LEXIS 4070 (1st Dist. Dec. 2, 2022); State v. Kellett, 2022-Ohio-4340, 2022 Ohio App. LEXIS 4088 (5th … Continue reading
MI: Automobile repair business is pervasively regulated
The trial court erred in suppressing the search of defendant’s automobile repair business which was a pervasively regulated business. The search was during the work week during regular hours and was for evidence of compliance with the Motor Vehicle Service … Continue reading
E.D.Mich.: Parole search can occur when parolee not home
Defendant was on state parole living with his girlfriend, also a defendant. They were out and her mother was their babysitter in the home. Parole came by for a compliance check. The mother let them in. First, the search was … Continue reading
W.D.N.Y.: RS for parole search of house justified by failure to report, curfew and travel violations, and tampering with GPS
A parolee’s “fail[ure] to report to the parole office, staying out past curfew, traveling out of his parole-approved area, and tampering with his GPS monitor” justified a parole search of the home. United States v. Jackson, 2022 U.S. Dist. LEXIS … Continue reading
M.D.Fla.: Positive UA is RS for a search of a probationer’s home
A positive UA is reasonable suspicion for a search of a probationer’s home. United States v. Walker, 2022 U.S. Dist. LEXIS 209507 (M.D. Fla. Oct. 17, 2022). “To prevail on a Fourth Amendment claim for false arrest, Johnson must establish … 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
CA6: Carpenter not retroactive and doesn’t support successor habeas
Carpenter doesn’t suffice for a successor habeas. Besides, he’d lose on the merits. “Taylor cannot meet the statutory criteria for filing a second or successive habeas corpus petition. First, he does not rely on any newly discovered evidence. Second, ‘the … Continue reading
OH1: No exclusionary rule for this alleged statutory violation for lack of notice of a probation search condition
Defendant’s contention the probation department failed to notify him of his search condition was a statutory violation but there is no exclusionary remedy for that. State v. Hayden, 2022-Ohio-3933, 2022 Ohio App. LEXIS 3721 (1st Dist. Nov. 4, 2022). In … Continue reading
MO: Def’s arrest violated state law but not the 4A, so it was not unreasonable
“This appeal presents the question of whether a police officer necessarily violates the Fourth Amendment when he makes an arrest that is prohibited by state law. Relying upon Virginia v. Moore, 553 U.S. 164, 128 S. Ct. 1598, 170 L. … Continue reading
PA: State’s statement of issues for review didn’t include the precise issue argued so it’s waived
The state in its statement of issues below addressed probable cause but did not mention inevitable discovery. That amounted to a waiver. “The inevitable discovery doctrine is not a subsidiary issue to a claim of adequate probable cause to support … Continue reading
OH: Exclusionary rule does not apply to statutory violations, here a parole search
Defendant signed a consent to parole search form, but the statute says it has to be on reasonable grounds. Here, even if the statute was violated, the exclusionary rule applies to constitutional violations, not statutory ones. State v. Campbell, 2022-Ohio-3626, … Continue reading
FL1: SW cured alleged defect in probation search where roommate wasn’t on probation
Defendant, not on probation, lived with two probationers. POs showed up for a probation search, and when they saw the extent of what they found and had a nonprobationer, they got a search warrant for the rest of the house. … Continue reading
DC: Gant search incident for open containers did not permit search of a small plastic box
A Gant search incident of a vehicle authorized for open containers of alcohol didn’t permit a more intense search of a plastic “otter box” finding PCP. Smith v. United States, 2022 D.C. App. LEXIS 326 (Sep. 29, 2022). The state … Continue reading