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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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Monthly Archives: August 2014
IA: Claim that consent search went beyond purpose of stop wasn’t preserved by scope of consent argument
“In his motion to suppress, Anderson argued ‘1) The consent to search was not knowing or voluntary. 2) If the consent was knowing and voluntary, the search exceeded the scope of the consent.’ Anderson now complains the search was unreasonably … Continue reading
TX13: Merely showing up at place per anonymous tip isn’t enough
Merely corroborating an anonymous tip that defendant would show up at a particular place isn’t corroboration enough to make the tip reliable. State v. One 2004 Lincoln Navigator, 2014 Tex. App. LEXIS 9557 (Tex. App. – Corpus Christi – Edinburg … Continue reading
E.D.Cal.: Pre-Riley warrantless search of cell phone in CA saved by Davis GFE
Binding precedent in California at the time of defendant’s cell phone search said that a warrant wasn’t needed, so Riley v. California is mooted here by Davis good faith exception. United States v. Peel, 2014 U.S. Dist. LEXIS 118264 (E.D. … Continue reading
D.Nev.: Pre-Riley warrantless cell phone search suppressed; no GFE here
A[n apparently] pre-Riley cell phone search in Nevada was governed by Riley. There was no binding Ninth Circuit authority that said search incident was good enough before Riley was decided. Therefore, no good faith exception. United States v. Eisenhour, 2014 … Continue reading
CA9: Misd possession of firearm on one’s own porch doesn’t justify warrantless entry into the home
There was a fair probability that defendant seen with a handgun on his porch, not a public place under state law, violated state law, but that doesn’t give any justification to surround his house and order him out at gunpoint … Continue reading
ID: Any objective basis for stop controls despite subjective intent
The objective basis for the stop controls, no matter what the officer’s subjective intent. The state constitutional argument is deemed abandoned for not properly arguing it. State v. Spies, 2014 Ida. App. LEXIS 89 (August 22, 2014):
Cal: Indicia warrant was proper
The search warrant seeking personal property on the premises that would identify defendant as having control over the property was not overbroad. It was necessary for the prosecution to establish defendant’s connection to the property. People v. Bryant, 2014 Cal. … Continue reading
Reuters: California Senate approves measure banning warrantless drone surveillance
Reuters: California Senate approves measure banning warrantless drone surveillance: The California State Senate passed legislation on Tuesday imposing strict regulations on how law enforcement and other government agencies can use drones, a move supporters said will protect privacy and prevent … Continue reading
NYTimes: How the Supreme Court Protects Bad Cops
NYTimes: How the Supreme Court Protects Bad Cops by Erwin Chemerinsky:
CA9: “brutal and physically invasive” warrantless rectal search in jail should have been suppressed
In a “brutal and physically invasive” warrantless rectal search in jail, the motion to suppress should have been granted. He was handcuffed, Tased, and surrounded by five officers, and exigent circumstances were lacking. United States v. Fowlkes, 770 F.3d 748 … Continue reading
S.D.Fla.: Where subject of SW is cash, it was reasonable here to conclude it was in defendant’s home
In a white collar case involving receipts of large sums of cash, it was reasonable for the USMJ to conclude on the totality that evidence, like cash, would be found in defendant’s home. United States v. Martinez, 2014 U.S. Dist. … Continue reading
D.D.C. USDJ reverses USMJ on refusal to grant particular email warrant
The government successfully appeals one of USMJ Facciola’s orders denying an email search warrant. In the Matter of the Search of Information Associated with [Redacted]@mac.com That Is Stored at Premises Controlled by Apple, Inc., 2014 U.S. Dist. LEXIS 117040 (D. … Continue reading
OH6: Reaching only for glove compartment not a “furtive gesture”
Only reaching toward the glove compartment is not a “furtive gesture.” The police secured defendant in the back of a police car and later searched the glove compartment, and it was not a lawful protective frisk of the car under … Continue reading
AZ: Visitor’s purse can be searched under SW for premises
“[A] warrant authorizing the search of a home also authorizes police to search a purse found there but belonging to a person not named in the warrant.” State v. Gilstrap, 2014 Ariz. LEXIS 142 (August 20, 2014):
Baltimore Sun: More police departments considering the use of drones
Baltimore Sun: More police departments considering the use of drones by Jessica Anderson: Uncertainty about regulations and privacy concerns keep many from adopting technology.
MN: No inventory permitted when defendant not being physically arrested
Because defendant was not being arrested for a minor drug offense, it wasn’t proper then to impound her car for an inventory. State v. Rohde, 2014 Minn. LEXIS 406 (August 20, 2014). The 52 page affidavit for the search warrant … Continue reading
CA3: No time requirement of when a bag seized from a vehicle under the automobile exception may be searched
There is no temporal requirement of when a bag seized from a vehicle under the automobile exception may be searched. Here, the government waived the argument that a fugitive for FTA in federal court after conviction never has standing while … Continue reading