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- AR: RS def rented a hotel room was sufficient for search waiver; PC not required
- LA5: No standing to challenge search of shooting victim’s cell phone in def’s possession
- N.D.Okla.: Cell phones possessed by tribal police not subject to return under Rule 41(g)
- E.D.Ark.: Landlord and tenant refused rental property inspection and SW was validly issued and protected privacy interests
- D.D.C.: Judge shopping after denial of SW inappropriate; could have appealed to DJ
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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)
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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: October 2017
S.D.Ohio: “Failure to follow Internal Revenue manual does not mandate suppression of any evidence obtained in violation thereof.”
Tax records were collected in an audit.”Failure to follow Internal Revenue manual does not mandate suppression of any evidence obtained in violation thereof.” United States v. Wright, 2017 U.S. Dist. LEXIS 167300 (S.D. Ohio Oct. 10, 2017). “[I]f an objectively … Continue reading
S.D.N.Y.: Exclusion warranted for stop without RS
Two plainclothes officers jumped out of a car and approached to men who fled. The court finds the officers didn’t identify themselves. This wasn’t reasonable suspicion, and the court finds exclusion warranted for the police conduct. United States v. Bell, … Continue reading
D.Nev.: Court gave a Franks hearing, but def didn’t make offer of proof to get one and failed on proof
Defendant got a suppression hearing to put on proof of a Franks violation, and he fails to show with any proof that the statements were reckless or material. Perhaps the court should have never ordered a hearing for a lack … Continue reading
M.D.Tenn.: 6 day delay in installing a court ordered tracking device wasn’t unreasonable without a showing that PC dissipated
A six day delay in installing a court ordered tracking device wasn’t unreasonable without a showing that the probable cause dissipated in the meantime, and defendant didn’t. United States v. Thirkill, 2017 U.S. Dist. LEXIS 166131 (M.D. Tenn. Oct. 5, … Continue reading
Two on RS for immigration stops on RS
The Brignoni-Ponce factors on the totality showed reasonable suspicion. Defendant’s attempt to isolate the factors and provide innocent explanations for all doesn’t work because of Arvizu: there is still reasonable suspicion on the totality. United States v. Rivero, 2017 U.S. … Continue reading
CNN: Intel leaders urge Congress to reauthorize NSA surveillance program
CNN: Intel leaders urge Congress to reauthorize NSA surveillance program by David Shortell:
MA: Inventory was not shown to be pretextual and was within policy
The suppression hearing judge found the officer credible on the question of whether the inventory was pretextual and concluded it was not. As a credibility determination, it can’t be reversed on appeal. The inventory was otherwise reasonable. Commonwealth v. Ehiabhi, … Continue reading
CA1: Using def’s keys to find his apt door was a “search” but it was still in GF even though that fact was in warrant application for apt
Defendant was arrested for drug dealing outside his apartment building. A search incident produced a set of keys. The police tried the keys on the apartment door until they worked. They didn’t enter but used the facts they’d developed plus … Continue reading
OH2: Somebody leaning in car window then leaving when police approach is not PC
Somebody leaning in the car window to talk to defendant then walking away as police approached is not probable cause to believe a drug deal just went down. Suppression motion should have been granted. State v. Ward, 2017-Ohio-8141, 2017 Ohio … Continue reading
Reason.com: Shackling Elementary School Kids Above Elbow Found to Violate the Fourth Amendment
Reason.com: Shackling Elementary School Kids Above Elbow Found to Violate the Fourth Amendment by Brian Doherty:
PA: Collective knowledge and RS doesn’t require the officer with knowledge actually communicate it to the others
Collective knowledge and reasonable suspicion doesn’t require the officer with knowledge actually communicate it to the others. “It is entirely permissible for an officer to engage in the investigation of a suspect based on the observations of another officer even … Continue reading
WBUR: Broad Jurisdiction Of U.S. Border Patrol Raises Concerns About Racial Profiling
WBUR: Broad Jurisdiction Of U.S. Border Patrol Raises Concerns About Racial Profiling by Kathleen Masterson: Within 100 miles of the border and the coastline, Border Patrol agents have broad authority to stop cars and people for immigration questions. For example, … Continue reading
OH5: Def’s refusal to stop digging in pockets during traffic stop was RS for frisk
Defendant’s erratic behavior during a stop was reasonable suspicion when he also refused to stop digging around in his pockets. State v. Imani, 2017-Ohio-8113, 2017 Ohio App. LEXIS 4469 (5th Dist. Oct. 5, 2017). The trial court did not err … Continue reading
OH follows Hudson on knock-and-announce under state constitution
The Ohio Supreme Court follows Hudson under the state constitution and holds that a violation of knock-and-announce does not justify suppression of the search. The state constitution has been applied more broadly than the Fourth Amendment on occasion, but not … Continue reading
WI: Checkpoint minutes after an armed robbery was reasonable; only two cars stopped
Officers responding to an armed robbery call were in the vicinity and parked in the street with top lights on along a possible escape route creating de facto checkpoint or roadblock. Because of time of day, there were few cars … Continue reading
Westlaw Insider: The Fourth Amendment in a Digital Age
Westlaw Insider: The Fourth Amendment in a Digital Age:
D.Nev.: SW to seize computers in CP case includes power to search
A warrant to seize computers in a child pornography case includes the power to search it. There was probable cause for the search warrants, and the Franks challenge was too deficient to get a hearing. United States v. Cohen, 2017 … Continue reading
NPR: Judge Limits DOJ’s Warrant For Records From Anti-Trump Site
NPR: Judge Limits DOJ’s Warrant For Records From Anti-Trump Site by Laurel Walsley:
The Hill: ACLU sues Homeland Security, Customs over ID check on domestic flight
The Hill: ACLU sues Homeland Security, Customs over ID check on domestic flight by Lydia Wheeler: