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- W.D.Ark.: Parole search waiver moots lack of PC argument
- AR: RS shown for boating while intoxicated stop
- W.D.Mo.: Wrong address in SW wasn’t fatal where right house was searched
- NY: Failure to show independent source for officer’s observation of def required reversal
- VA: Outline of a gun in def’s pocket was RS
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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: June 2018
D.S.C.: One innocently driving a stolen vehicle generally doesn’t have standing in it, but he has to show his innocent status
One innocently driving a stolen vehicle generally doesn’t have standing in it. If, however, he innocently buys a stolen vehicle and then he’s stopped in it, it’s his burden to show that he was an innocent purchaser to acquire standing. … Continue reading
D.Md.: SW for drug evidence on a computer allowed cursory look at each file, and CP was validly found
Once officers were in defendant’s computer with a search warrant looking for drug evidence, they could cursorily look at each file, and, in the process found child pornography. [This is akin to a plain view.] With that, the search stopped, … Continue reading
CA8: Prior unlawful search of bag on bus was corrected by good faith actions of officer and exclusionary rule wouldn’t be applied
A Tornado bus was stopped in Arkansas, and the Arkansas State Trooper was looking for unmarked bags that could be considered abandoned because unmarked bags on Tornado buses were being used to ferry drugs. While searching the bag, the officer … Continue reading
PA: Victim was robbed of his iPhone and police tracked it to def by “Find My iPhone” app
The victim here was robbed of his iPhone and backpack, and it happened under a streetlight so he got a good look at the perpetrators. The victim told the officer his cell phone number, and the officer tracked it with … Continue reading
E.D.Tenn.: IAC claim has to allege facts and law that the unfiled motion to suppress would have been granted
Defendant claims in his 2255 that defense counsel was ineffective for not filing a motion to suppress a search but does not even allege the grounds for it or that he would have had standing, and it appears he didn’t. … Continue reading
KS: A field sobriety test is not a search.
A field sobriety test is not a search. Even if it was, this was shown to be by consent. City of Leawood v. Puccinelli, 2018 Kan. App. LEXIS 35 (June 22, 2018). This heading in the too long opinion explains … Continue reading
CA2: If excising the tainted information from the affidavit still leaves PC, the search stands
“When an application for a search warrant includes both tainted and untainted evidence, ‘the warrant may be upheld if the untainted evidence, standing alone, establishes probable cause.’” Excising the challenged information here still yields probable cause on the totality. United … Continue reading
GA: SW obviates need to follow the hearing provisions of the Georgia Animal Protection Act which has provision for impoundment and return of animals seized under the Act
The Georgia Animal Protection Act has provision for impoundment and return of animals seized by the state. When a search warrant is used, as here, that provision doesn’t apply. Bramblett v. Habersham County, 2018 Ga. App. LEXIS 399 (June 21, … Continue reading
D.D.C.: BOP employee had no REP in BOP owned work cell phone even though personal information was on it
BOP IG issued an administrative subpoena for respondent to produce her BOP owned cell phone, and she refused claiming a reasonable expectation of privacy in it. First, the standard of review is narrow and limited, and the subpoena is enforceable. … Continue reading
The Virginian-Pilot: She spent 3 months in jail despite a Norfolk police video proving her innocence
The Virginian-Pilot: She spent 3 months in jail despite a Norfolk police video proving her innocence by Scott Daugherty She was allegedly in a video selling drugs. Only she wasn’t. They didn’t look for 114 days.
S.D.Ga.: CI information was a little stale, but the officer’s corroroboration was with current information and that overcame staleness
The CI’s information was a little dated and potentially stale, but it was corroborated by current information and that was probable cause. United States v. Mobley, 2018 U.S. Dist. LEXIS 101640 (S.D. Ga. June 18, 2018). “In this case, by … Continue reading
DE: A visitor’s car parked outside a house being raided wasn’t enough to search it; here, however, the keys were found next to heroin inside, and that was enough
Defendant’s vehicle was parked outside of a house where a search was going down. Merely being outside isn’t cause to search the car. Finding the keys next to heroin inside was because that provided nexus to the drugs in the … Continue reading
IA: Stopping behind a car parked with brake lights on on a country road at 1 am was reasonable under the community caretaking function
“This case requires us to decide whether an officer was justified in pulling behind a vehicle and activating his emergency lights when the vehicle was stopped by the side of a highway after 1:00 a.m. with its brake lights engaged. … Continue reading
Slate: Sotomayor, Fourth Amendment Visionary
Slate: Sotomayor, Fourth Amendment Visionary by Mark Joseph Stern How the Supreme Court vindicated the justice’s prescient theory of digital privacy.
HotAir: Justice Gorsuch’s fascinating, constitutional dissent in Carpenter
HotAir: Justice Gorsuch’s fascinating, constitutional dissent in Carpenter by Taylor Millard Because the majority didn’t go far enough. Still, it should have been a concurrence.
NYTimes: Thermostats, Locks and Lights: Digital Tools of Domestic Abuse
NYTimes: Thermostats, Locks and Lights: Digital Tools of Domestic Abuse by Nellie Bowles Internet-connected home devices that are marketed as the newest conveniences are also being used to harass, monitor and control.
WaPo: Editorial: Congress must reckon with the Fourth Amendment and new technology
WaPo: Editorial: Congress must reckon with the Fourth Amendment and new technology A 5-to-4 decision suggests the Supreme Court’s view of “unreasonable searches” is evolving. The House and Senate should clarify the legal standard.
DE: Facebook messages def was reselling MMJ was part of the PC
A medical marijuana provider told police that it appeared that defendant was reselling that which she acquired legally. They messaged her through Facebook as a potential buyer, and she essentially admitted it. The search warrant was issued on probable cause … Continue reading
D.Mass.: USMJ’s spouse’s employment as a doctor at a related institution that was a victim doesn’t make her not neutral and detached when she signs SW
The USMJ here was still neutral and detached. The victim of the crime was a non-profit associated with Harvard. Her husband worked as a doctor for hospital associated with Harvard. That wasn’t a close enough relationship to require recusal. United … Continue reading