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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: Staleness
OH1: RS went stale by the time def was seen again days later
There was no reasonable suspicion for defendant’s stop days after he was seen on the street. “Perhaps if the officers had stopped J.T. and his red-sweatshirt-wearing companion nearby the church immediately after the shooting, the totality of the circumstances could … Continue reading
Army: Affidavit for SW didn’t show why text messages would still be on def’s cell phone; but harmless error
The government did not show in the affidavit for search authorization that text messages would logically be found on his cell phone corroborating a sex crime victim. Nevertheless, he wasn’t prejudiced by it. United States v. Geranen, 2023 CCA LEXIS … Continue reading
W.D.Va.: Info on def’s cell phone provided nexus for SW of house
Information on defendant’s cell phone linking him and Trafficker A also linked his home to the transactions and that showed nexus. United States v. Johnson, 2023 U.S. Dist. LEXIS 130082 (W.D. Va. July 27, 2023).* The information about defendant’s drug … Continue reading
E.D.N.Y.: In a murder for hire case, a two year delay between the killing and the search didn’t make it presumably stale
In a murder for hire case, a two year delay between the homicide and the search warrant for defendant’s premises did not make the warrant presumably stale. The warrant sought digital evidence, and there were four conspirators and it spanned … Continue reading
MO: Virginia v. Moore does not require officer see the crime to have PC for arrest outside jurisdiction
Virginia v. Moore does not require that an arresting officer personally have seen the act that led to the arrest outside the officer’s jurisdiction as long as there was probable cause. State v. Barton, 2023 Mo. LEXIS 183 (June 27, … Continue reading
E.D.Mich.: Failure to file SW return doesn’t require suppression
Failure to file the warrant return doesn’t require suppression. It’s a curable ministerial act. Besides, the defendant can’t show prejudice. As to the merits, the search warrant was issued with probable cause and the good faith exception applies in any … Continue reading
E.D.Tenn.: Undated controlled buys had to be in five weeks before SW, and that’s not stale
The multiple controlled buys were undated in the search warrant application, but the common sense reading was that they were in the five weeks before the warrant issued. That shows an ongoing drug operation, and it’s not stale. United States … Continue reading
AF: Telling wife in jail call to delete a social media account AFOSI was looking to search was obstruction
While defendant was in pretrial confinement, he called his wife and instructed her to delete a social media account that the government was intending to search. This led to his obstruction charge. The call was monitored by the jail. United … Continue reading
E.D.N.Y.: Even if Brooklyn checkpoint was unreasonable, def’s flight from it was intervening circumstance
NYPD set up a vehicle checkpoint in East Flatbush, Brooklyn, because of heavy traffic and crime in general. Every third vehicle was to be stopped except anything apparently a violation would cause a stop. Defendant was stopped for no front … 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
CO: Typo in date (9/9 v. 9/30) in SW affidavit could be overlooked by other contents referring to previous few hours; GFE also applies
The typographical error in the affidavit showing the date as September 9th when it should have been September 30th could be overlooked because the affidavit as a whole referred to the previous few hours, and the good faith exception applies. … Continue reading
CA4: “[T]he ability to execute a search does not necessarily imply power to execute a search warrant.”
“[T]he ability to execute a search does not necessarily imply power to execute a search warrant.” Osmon v. United States, 2023 U.S. App. LEXIS 9177 (4th Cir. Apr. 18, 2023). Defendant’s Franks motion fails because there’s no offer of proof … Continue reading
CA4: Slightly outdated information police gathered def lived at place in SW still made it in good faith
Officers gathered information that defendant’s son lived in his house and presented it for a search warrant. After the search they found out he didn’t. The warrant was still issued in good faith. United States v. Jordan, 2023 U.S. App. … Continue reading
W.D.Ky.: SW for car in impound four months after seizure based on jail call was not stale; no realistic chance of change in condition
After a jail call, the police decided to get a search warrant for defendant’s car in impound for four months for drugs in the engine compartment which had been in impound. The warrant wasn’t stale because the information was just … Continue reading
WY: In felony domestic battery case, state showed nexus that evidence could likely be found in def’s journal
Defendant was convicted of strangulation of a family member. The family member reported to the police that he had been in counseling and was keeping a detailed journal trying to break the cycle of domestic abuse. The affidavit for the … Continue reading
CA6: Affidavit circumstantially supported nexus
There was nexus to defendant’s home as a base of operations for drug sales based on circumstantial evidence in the affidavit for warrant. United States v. Pointer, 2022 U.S. App. LEXIS 35506 (6th Cir. Dec. 20, 2022).* The search warrant … Continue reading
N.D.Ill.: PC for admin. warrant became stale before it was sought
This administrative search warrant under OSHA became stale by the government’s delay in seeking it and litigation delays. Also, USMJs have jurisdiction to issue administrative inspection warrants. F.R.C.P. 72 objections do not apply to administrative warrants because they frustrate enforcement … Continue reading
CA6: 4A generally doesn’t apply to sentencing enhancements
“The Fourth Amendment does not apply to sentencing enhancements. … We have recognized a possible exception to this rule—when officers illegally seized the evidence for the very purpose of enhancing the defendant’s sentence—but Wyse makes no such allegation.” United States … Continue reading