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Recent Posts
- W.D.Wash.: DNA warrant isssued with PC not quashed before execution
- 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
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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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Congressional Research Service:
--Electronic Communications Privacy Act (2012)
--Overview of the Electronic Communications Privacy Act (2012)
--Outline of Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012)
--Federal Statutes Governing Wiretapping and Electronic Eavesdropping (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: Independent source
D.Minn.: Second SW cured defects in first
First search warrant probably violated the Fourth Amendment, but another was sought that omitted everything about the first search warrant, including what was found. The second was valid, and the good faith exception applied. United States v. Eggerson, 2018 U.S. … Continue reading
DE: State const’l claim Caballes should be rejected would not be considered on mere plain error review
Defendant for the first time on appeal raised a state constitutional argument that Caballes on dog sniffs as searched should be rejected. The court declines to go there on plain error review. Bradley v. State, 2018 Del. LEXIS 477 (Oct. … Continue reading
OH8: Home inspections was a reasonable probation condition for 42 housing code violations
Defendant was convicted of 42 counts of housing code violations of a house in constant disrepair since 2002. As a condition of probation, he was ordered to permit home inspections, and this was reasonably related to the offense of conviction. … Continue reading
AR: Cell phone search suppressed and state gets do over with independent source doctrine
Probable cause was shown for a search warrant for a cell phone for taking video of defendant’s daughters changing clothes under a door. The independent source doctrine permitted police to get a second search warrant for the phone after the … Continue reading
CA10: You can’t tell the court it needs to apply the independent source case law a certain way and then complain on appeal that it did what you asked
This case started with hotel housekeeping coming in to clean a room and seeing obvious drug paraphernalia. The police were called, and they were shown. A search warrant was prepared showing probable cause to connect defendants to the room by … Continue reading
CA11: Aerial surveillance alone was independent source for SW
The independent source doctrine applies to officers’ aerial surveillance alone. If the officers had only mentioned their aerial surveillance seeing marijuana plants, that alone was probable cause. “The district court credited the agents’ testimony that they would have sought a … Continue reading
E.D.Mo.: Federal SW for cell phone after private search then state SW was on independent source
Defendant’s cell phone was first the subject of a private search, and then a police search. The police search exceeded the scope of the private search, and that led to a state issued search warrant. The state search warrant was … Continue reading
D.Kan.: Appellate counsel’s declining to appeal “including but not limited to” in the search warrant was not IAC
Appellate counsel’s declining to appeal the use of the phrase “including but not limited to” in the search warrant was not unreasonable because, as defendant admits, it does not per se lead to unreasonable searches. United States v. Ransom, 2018 … Continue reading
E.D.Va.: Manafort storage building search sustained: Employee with free access had apparent authority to consent to entry
The FBI reasonably relied on a person with apparent authority to consent to an entry into a storage locker to look around. The consenter had free access to the storage room as an employee, and the employer-employee relationship can permit … Continue reading
LA5: Knock-and-talk cannot be used to create exigency
Officers came to defendant’s house because a couple of drug suspects had visited him. The officers’ knock-and-talk didn’t gain them entry into the house, and a knock-and-talk can’t be used to create exigent circumstances. A protective sweep was unjustified because … Continue reading
CA9: Prior illegal entry into home doesn’t void subsequent SW if observations removed from SW affidavit
Assuming, without deciding, the warrantless entry into defendant’s home was invalid, there still was probable cause for issuance of the search warrant based on the remainder of the affidavit, excising the product of the prior entry. Inclusion of information from … Continue reading
GA: Def’s cell phone was seized and downloaded w/o a warrant, but the download wasn’t searched until a SW was obtained; search valid under independent source
Defendant’s cell phone was seized and downloaded, but the download wasn’t searched without a search warrant. The court doesn’t even have to decide whether exigent circumstances permitted the download because the police had seized it lawfully and they have plenty … Continue reading
CA2: If excising the tainted information from the affidavit still leaves PC, the search stands
“When an application for a search warrant includes both tainted and untainted evidence, ‘the warrant may be upheld if the untainted evidence, standing alone, establishes probable cause.’” Excising the challenged information here still yields probable cause on the totality. United … Continue reading
CA9: Unreasonable detention of those present when SW executed not shown
“The district court also did not err in granting summary judgment in favor of the individual defendants on Strong and Byers’ claims that the detention violated their Fourth Amendment rights. Officers may detain all persons present when a warrant is … Continue reading
S.D.N.Y.: No standing to complain of CSLI for somebody else’s phone
Defendants have no standing to challenge the seizure of CSLI on telephone numbers they don’t complain are theirs. United States v. Pizarro, 2018 U.S. Dist. LEXIS 60539 (S.D. N.Y. Apr. 10, 2018).* Police seizure of an SD card was by … Continue reading
CA11: Ten officers for a “knock and talk” violated Jardines, but it wasn’t the cause of the search of the house
Ten officers approaching defendant’s house for a “knock-and-talk” violated Jardines, but that doesn’t matter because it didn’t lead to the discovery of evidence. Defendant didn’t see them, and he opened the door in response to the knock. Then the officer … Continue reading
WA: Second SW for records already produced was independent source; exclusionary rule won’t be applied
Verizon produced phone records under a court order, that later was determined to be invalid. A second order was issued for the same records. Verizon didn’t produce those records the second time because the first had been produced and they … Continue reading