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- CA7: Strip search was reasonable, no matter the motive
- CA5: Franks civil case pleads enough to overcome QI
- MI: Exclusionary rule doesn’t apply in civil cases; constitutionality of use of drone for zoning enforcement not decided
- Econlib: Drug Prohibition, Exclusionary Rule, Fourth Amendment, Opportunity Costs, US v Regan
- Cal.1st: Minor in possession of MJ is PC for search of car
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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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Section 1983 Blog -
"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: May 2017
CA5: Prospective CSLI is a records request, and it is not subject to the Fourth Amendment
A court order for prospective cell site location information is a records request, and it is not subject to the Fourth Amendment. United States v. Wallace, 2017 U.S. App. LEXIS 8914 (5th Cir. May 22, 2017), substituted opinion 2017 U.S. … Continue reading
D.N.M.: “An attorney’s choice in advancing one theory over another at a suppression hearing is often a strategic decision.”
“An attorney’s choice in advancing one theory over another at a suppression hearing is often a strategic decision.” United States v. Gutierrez, 2015 U.S. Dist. LEXIS 188570 (D.N.M. January 27, 2015). Defendant couldn’t claim ineffective assistance from a 2004 traffic … Continue reading
D.P.R.: Lack of attenuation from illegal search leads to exclusion
The lack of attenuation and exploitation of the illegality of an illegal search here favors exclusion. United States v. Cordero-Rosario, 2017 U.S. Dist. LEXIS 76904 (D.P.R. May 18, 2017):
OH2: Nothing about def or her driving suggested she was under the influence; PBT suppressed
There was no reasonable suspicion for defendant’s stop: defendant had not admitted to drinking on the evening of the stop, that her traffic violation had been de minimis, that her speech was not impaired, that neither defendant’s movement when she … Continue reading
The last of the files left in the hacks are gone
Our server service took us down for 48 hours to cleanup files left during the hacks. Regretfully, there were phishing attacks coming from here because of implanted files. You remove what they point out, and then others appear, triggered maybe … Continue reading
CA1: Misstatement Alpha-PVP was in package instead of Alpha-PHP was not material nor in bad faith
The affidavit for search warrant was based on a customs search of a package destined for delivery in Maine that the contents was Alpha-PVP, which is how it looked and field tested as MDMA. Later lab analysis showed it was … Continue reading
CA11: Shooting of ptf during drug raid was reasonable and subject to QI
This § 1983 case arose from a shooting death by police during execution of a drug search warrant. The pre-search briefing told the officers that the suspect inside was involved in drug dealing and was likely armed, so a no-knock … Continue reading
IA: Def plead guilty and later overruling of case law suggested the stop was unreasonable; no IAC claim on direct appeal
An LPN check showed the 77 year old owner of the car had an expired DL. When the officer encountered the driver, it was obviously not the owner because of age. It was the owner’s daughter. The officer shortly determined … Continue reading
CA1: 82 minute stop was with RS
Reasonable suspicion developed from defendants’ stop to extend it for 82 minutes. United States v. Ramdihall, 2017 U.S. App. LEXIS 8727 (1st Cir. May 18, 2017).* Defendant was stopped by police after getting off Amtrak at Minot ND. A great … Continue reading
CA11: A police dog can’t be sued for excessive force under § 1983 or for negligence under state law
A police dog can’t be sued under § 1983, although the handler can. Here, the handler has qualified immunity for this use of force. Jones v. Fransen, 2017 U.S. App. LEXIS 8816 (11th Cir. May 19, 2017):
IA: Plain view of a baggie is enough to seize it without also knowing that there are drugs in it
Plain view of a plastic baggie is enough to seize it without also knowing that there are drugs in it. State v. Taylor, 2017 Iowa App. LEXIS 517 (May 17, 2017). Defendant’s speeding and his condition was reasonable suspicion for … Continue reading
NYLJ: Computer Searches: A ‘General’ Warrant Can No Longer Satisfy Requirements
NYLJ: Computer Searches: A ‘General’ Warrant Can No Longer Satisfy Requirements by Roger L. Stavis (May 19, 2017):
HI imposes triggering condition in anticipatory warrants under state constitution
“We are faced with a question of first impression for this court: Does the Hawai’i Constitution require that an anticipatory search warrant identify the triggering condition on the face of the warrant? In light of the privacy protections contained in … Continue reading
N.D.N.Y.: Def’s prior drug involvement justified a drug search condition on supervised release
Defendant’s prior convictions for drugs from age 17-22 justified a drug search condition on supervised release. United States v. Betsy-Jones, 2017 U.S. Dist. LEXIS 75157 (N.D. N.Y. April 28, 2017), adopted, 2017 U.S. Dist. LEXIS 74113 (N.D. N.Y. May 16, … Continue reading
M.D.Pa.: Def’s version in pro se motion to suppress used against him in third on credibility
Defendant files three motions to suppress. The first one was pro se and never mentioned that his stop was pretextual, that the headlights were actually on, and the stop was without reasonable suspicion. A later motion to suppress challenged the … Continue reading
Cal.4th: Passenger’s parole status permitted search of entire passenger compartment
Defendant was in a car with a parolee. After a valid stop, the parolee gave a false name, and the officer eventually got the right name and parole status. A search of the whole car was permissible even though the … Continue reading