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ABA Journal Web 100, Best Law Blogs (2017); ABA Journal Blawg 100 (2015-16) (discontinued 2018)
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© 2003-22,
online since Feb. 24, 2003 Approx. 350,000 visits (non-robot) since 2012 Approx. 40,000 posts since 2003~~~~~~~~~~~~~~~~~~~~~~~~~~
Fourth Amendment cases,
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--Electronic Communications Privacy Act (2012)
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Section 1983 Blog"If it was easy, everybody would be doing it. It isn't, and they don't."
—Me“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!”
"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."
---Pepé Le Pew
—Johnson v. United States, 333 U.S. 10, 13-14 (1948)
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Category Archives: Collective knowledge
E.D.N.Y.: NYPD’s I-Card system when based on PC satisfies collective knowledge
NYPD issues what it calls an “I-Card” (“Activate Investigation Card”) which is supposed to be based on probable cause to believe a person committed a felony. With probable cause, the I-Card provides collective knowledge for an arrest. United States v. … Continue reading
OH12: Dog alert on car and def’s person didn’t justify strip search
There was reasonable suspicion for and continuing defendant’s stop. A dog sniff was permitted. The dog’s alert, however, didn’t permit a strip search of defendant. It did permit a search of the person. State v. Owensby, 2022-Ohio-1702, 2022 Ohio App. … Continue reading
W.D.Ky.: Non-answers to questions added to RS
There was reasonable suspicion here from the officer’s observations and defendant’s non-answers to questions. United States v. Dunn, 2022 U.S. Dist. LEXIS 41610 (W.D.Ky. Mar. 9, 2022).* Not filing a motion to suppress here was not ineffective assistance. Defendant was … Continue reading
D.Conn.: Collective knowledge doctrine requires passing on some of the “knowledge”
Another officer stopping the defendant under the collective knowledge doctrine at least has to be informed of what the “knowledge” is that warrants the stop. Without it, no reasonable suspicion. United States v. Roman, 2022 U.S. Dist. LEXIS 30416 (D.Conn. … Continue reading
WV: Officer admitted prior testimony was erroneous; not incredible as a matter of law
The officer obtaining the search warrant here was found to have mistakenly testified in federal court that he did not personally present this warrant to the magistrate. Admission of that mistake was credited here that he did present the affidavit. … Continue reading
CA2: SW for premises was particular despite claim part of it was multifamily
The search warrant application didn’t mention that the premises was actually a multifamily dwelling. It appeared not to be, and the IP information for a child pornography search warrant came back to that address as a whole. “Regardless of whether … Continue reading
NY4: Failure to ID source of information in affidavit for SW failed showing PC
“Here, the majority of the information provided in support of the warrant application was in an affidavit prepared by a detective, and that affidavit ‘does not “permit a reasonable inference that it was based upon [the detective]’s personal knowledge”’ .… … Continue reading
OH: Statute doesn’t change rule that felony arrest on PC doesn’t need an arrest warrant
The Fourth Amendment and Ohio Constitution permit felony arrests in public on probable cause without exigency. Statute doesn’t change that. State v. Jordan, 2021-Ohio-3922, 2021 Ohio LEXIS 2213 (Nov. 9, 2021). “Here, the collective knowledge of Troopers Schulz, Colindres, and … Continue reading
N.D.Ill.: Officer watching video of street radioing officer on the street about seeing a gun was RS
A Chicago PD officer was watching the streets with surveillance cameras, and he observed defendant apparently with a firearm under his shirt. That report to others who conducted the frisk was collective knowledge for a stop [although that phrase isn’t … Continue reading
CA9: Retired LEO as civilian employee qualified under collective knowledge
A retired LEO experienced in drug cases who was now a civilian employee of the department could here be included within the collective knowledge doctrine. United States v. McCoy, 2021 U.S. App. LEXIS 30364 (9th Cir. Oct. 12, 2021). Probable … Continue reading
OH1: Collective knowledge doesn’t require transmission of PC between officers
An undercover officer radioed a patrol officer to stop defendant for impeding traffic for blocking the street while talking car to car. When stopped, the patrol officer didn’t even know the reason for the stop nor where the offense occurred. … Continue reading
CA1: Collective knowledge isn’t required of all officers, just those involved
Collective knowledge is not required of all the officers involved in the case, just the one with knowledge telling the one making the stop. Here there was reasonable suspicion for the stop. United States v. Cruz-Rivera, 19-1465 & 19-1509 (1st … Continue reading
E.D.N.C.: The fact the search violated the state constitution isn’t a factor on legality of the search in federal case
In a federal criminal case, the fact the search violated the state constitution isn’t a factor on legality of the search under the Fourth Amendment. United States v. Breeden, 2021 U.S. Dist. LEXIS 145729 (E.D.N.C. Aug. 4, 2021). Various factors … Continue reading
NY2: Collective knowledge requires proof of the knowledge
The state relied on the fellow officer rule. “Although there were references to eavesdropping warrants that had been obtained for the defendant’s and her codefendant’s phones, the People inexplicably failed to offer any evidence at the hearing to establish that … Continue reading
OH12: Search of wallet in patdown unreasonable
Defendant’s patdown produced a wallet, and search of the ID inside exceeded its proper scope. State v. Maffey, 2021-Ohio-2460, 2021 Ohio App. LEXIS 2423 (12th Dist. July 19, 2021) This excessive force case for use of force during an arrest … Continue reading
E.D.N.Y.: Any RS was dispelled before stop
The officer may have had reasonable suspicion as he approached the defendant, but, as he got closer, suspicion was dispelled. No reasonable suspicion for the stop. Motion to suppress granted. United States v. Chavous, 2021 U.S. Dist. LEXIS 131326 (E.D. … Continue reading
WA: Prior knowledge of arrest warrant became stale
Stale information that a warrant existed for defendant was not probable cause when the warrant had been recalled, and no one checked the day of the arrest. State v. Pines, 2021 Wash. App. LEXIS 1160 (May 10, 2021). Subpoenas to … Continue reading
KS: 24 minute wait for drug dog with RS wasn’t unreasonable
A wait of 24 minutes for the drug dog to arrive after reasonable suspicion developed was reasonable and not excessive. State v. Arrizabalaga, 2021 Kan. LEXIS 50 (Apr. 30, 2021). The Border Patrol request to local police to stop defendant … Continue reading
WI: Burning mj in a house is exigency of evidence being destroyed by burning
The smell of burning marijuana is exigent circumstances because the contraband is being destroyed by burning. State v. B.W.R., 2021 Wisc. App. LEXIS 201 (Apr. 28, 2021) (unpublished). Under Birchfield, “An increased penalty for the warrantless blood draw refusal revocation … Continue reading
WV: Emergency order of protection was not functional equivalent of SW for entry into home
Officers with an emergency order of protection used it to enter defendant’s house and seize firearms. The protections of the Fourth Amendment and the state constitution are greater. The order was not, then, the functional equivalent of a warrant, and … Continue reading
