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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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"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 2018
E.D.Va.: When the stop is based on RS of speeding, the unmarked car’s speedometer doesn’t have to be “calibrated”; when there are two bases for stop, attacking one isn’t good enough
Defendant argues that his stop wasn’t justified because the police officer paced him with the uncalibrated speedometer on his unmarked car. The question, though, is reasonable suspicion, and aside from speeding there was a window tinting violation. So, the stop … Continue reading
N.D.Cal.: The question for a stop is potential danger, not “significant danger”
The government didn’t have to show that defendant posed a potential significant danger to officers; just a possible danger based on objective observations and knowledge. It satisfied that here even though the offense (flashing a weapon) happened earlier in the … Continue reading
Just Security: Americans’ Privacy at Stake as Second Circuit Hears Hasbajrami FISA Case
Just Security: Americans’ Privacy at Stake as Second Circuit Hears Hasbajrami FISA Case by Elizabeth Goitein:
Gizmodo: Woman Sues Border Agents to Make Them Return Data They Seized From Her Phone
Gizmodo: Woman Sues Border Agents to Make Them Return Data They Seized From Her Phone by Melanie Ehrenkranz:
WaPo: FBI surveillance devices may interfere with 911 calls, U.S. senator says
WaPo: FBI surveillance devices may interfere with 911 calls, U.S. senator says by Aaron Gregg: In a letter to the Justice Department, Sen. Ron Wyden raised the concern that Stingray phone surveillance devices could “completely disrupt” cell services, citing conversations … Continue reading
SF Chronicle: On the road to Burning Man, traffic stops and drug searches fuel backlash
SF Chronicle: On the road to Burning Man, traffic stops and drug searches fuel backlash by Peter Fimrite:
NC: CI merely located defendant; officers already had PC, so no disclosure of CI’s identity
Officers merely used the CI to locate the defendant, not for the probable cause to search, so no reason to disclose the CI is shown. State v. Heard, 2018 N.C. App. LEXIS 828 (Aug. 24, 2018). The dash cam video … Continue reading
E.D.Cal.: Inventory procedures not followed, and testimony suggested investigative motive, so suppressed
The inventory did not comply with CHP procedures, and it appears from the officer’s testimony at the suppression hearing that it really had an investigatory purpose. United States v. Verduzo-Verduzco, 2018 U.S. Dist. LEXIS 144696 (E.D. Cal. Aug. 24, 2018):
LA4: Actual apartment number not needed in SW when it is clearly described
The actual apartment number on the search warrant isn’t required when defendant’s apartment is clearly described. (“2819 Carondelet Street, New Orleans, La., described as the middle first floor apartment of a raised two story wood frame structure with grey stucco … Continue reading
S.D.Ga.: Payton‘s standard is “reason to believe” under a common sense approach and not PC
The Payton standard for determining whether a person is home for execution of an arrest warrant is “reason to believe” under a common sense approach and not a more demanding probable cause requirement. In addition, defendant’s actions showed he abandoned … Continue reading
LA2: No IAC for not challenging search of house two months after murder
Defense counsel wasn’t ineffective for not moving to suppress a search of defendant’s home two months after a murder because it wasn’t meritorious [and the court never says why it wasn’t]. State v. Critton, 2018 La. App. LEXIS 1618 (La. … Continue reading
CA11: Apparent consent for 5:30 am entry defeats “egregious” 4A violation for exclusion in immigration removal
Petitioner’s declaration did not make a prima facie case of an egregious violation of the Fourth Amendment to preclude evidence in his removal proceeding. The entry was at 5:30 am, but there was also evidence of consent to the entry. … Continue reading
CA7: Considering that SWs are entitled to deference, the strong inference here doesn’t have to be proved
In a child pornography starting as a fake child enticement case: “Scott assumes that on appeal we will make an independent (de novo) assessment of probable cause, ignoring the state judge’s finding. We will not. The decision of the judge … Continue reading
WaPo: New facial recognition system nabs imposter at Dulles International Airport
WaPo: New facial recognition system nabs imposter at Dulles International Airport by Lori Aratani: Officials said a 26-year-old man arriving at Dulles International Airport on Wednesday presented a French passport to a U.S. Customs and Border Protection officer. Using the … Continue reading
Law360: Airbnb Suit Challenges New NYC Rental Data Collection Law
Law360: Airbnb Suit Challenges New NYC Rental Data Collection Law by Pete Brush Airbnb Inc. sued New York City on Friday claiming a new law requiring online rental companies to share data about their clientele violates the U.S. Constitution, but … Continue reading
MA: Stop with guns drawn without RS unreasonable
A stop with guns drawn without reasonable suspicion was unreasonable. Summary by the court: “A Superior Court judge erred in denying the criminal defendant’s pretrial motion to suppress a firearm seized by police after a lawful stop of the vehicle … Continue reading
D.Colo.: There is no requirement the SW particularly describe the inside of the place to be searched
The CI was corroborated by controlled buys and surveillance cameras showing drug deals outside defendant’s home. The house was sufficiently described that the wrong house wouldn’t be searched. “Ms. Pereda nonetheless argues the search warrant lacked particularity because it did … Continue reading
WA: Even if CP warrant was overbroad (it’s not), severability makes seizure valid
One month old information received from Microsoft to NCMEC was not stale. (That is settled everywhere.) The search warrant was not too vague, and, even it if was, the court’s ability to sever invalid parts makes this search valid. State … Continue reading
PA: Complete lack of corroboration of CI showed no PC for SW
The affidavit for search warrant did nothing to corroborate the CI. The only inference that can be drawn is that more investigation is required, and it wasn’t done. Therefore, there was no probable cause on the face of the affidavit, … Continue reading
N.D.Ga.: Alleged isolated violation of Posse Comitatus Act doesn’t require exclusion
Alleged isolated violation of Posse Comitatus Act doesn’t require exclusion. McGill v. United States, 2018 U.S. Dist. LEXIS 142130 (N.D. Ga. Aug. 22, 2018). Trash cans were left at the street for collection of the contents, so there was no … Continue reading