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- MO: Initial bail setting under Gerstein not adversarial
- D.Alaska: Protective sweep after def’s arrest not justified, but there was exigency otherwise
- D.Colo.: Four day delay in getting SW for seized car wasn’t unreasonable
- FL3: Cell phone dump in civil case denied; no showing of need
- E.D.Va.: Must plead prejudice when delay of a cell phone SW is alleged
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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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Daily Archives: July 28, 2019
WaPo: She delivered $200 worth of drugs. Police seized her $53,000 Chevrolet Tahoe.
WaPo: She delivered $200 worth of drugs. Police seized her $53,000 Chevrolet Tahoe. by Justin Jouvenal:
MA: An unreasonable and overlong detention of the car is also one of the passengers
The mere fact the car was rented provided no indication to the officer that the defendant wasn’t permitted to drive it, thus no reasonable suspicion from that. Thus, the stop was unreasonably extended without reasonable suspicion. When the detention is … Continue reading
E.D.Va.: In an open carry state, more than presence of a gun is required for RS, and here the officers had it
In an open carry state, more is required for reasonable suspicion, and here it was present. “The Court finds that, by the time Officer Gohn saw the firearm in plain view on the floorboard of the Chevy Cobalt and verbally … Continue reading
TN: There was PC for a search of the person but no exigency
There was probable cause for a search of defendant’s person, but there’s no evidence of exigency to justify it. A frisk produced no weapons, a drug dog didn’t alert on the car. Ultimately, he was made to empty his pockets, … Continue reading
D.Idaho: Def can be forced to use finger on Touch ID feature to open phone
The USMJ denied an order to compel the target to use the “Touch ID” feature of his cell phone to open it. On appeal to the USDJ, surveying the cases, the court orders the target to use his finger because … Continue reading
DE: Collateral estoppel erroneously applied from a forfeiture case to a criminal case
The trial court erroneously applied collateral estoppel from a forfeiture case to defendant’s criminal case. Brown v. State, 2019 Del. LEXIS 363 (July 22, 2019). “I conclude that Trial Counsel’s strategy did not prejudice Lambert in any way. Lambert also … Continue reading
KS: Inevitable discovery not fully developed and remanded
Another case on inevitable discovery finds two of the three Brown factors satisfied. “Here, the officer discovered an arrest warrant that predated his encounter with Tatro. And Tatro has not argued the warrant was tainted, invalid, or related to the … Continue reading
CA9: Use of tear gas to enter house, even where consent given, was not clearly unreasonable considering a dangerous, potentially armed, and suicidal felon was barricaded inside
“The panel held that assuming the consent was voluntary and defendants exceeded the scope of the consent by shooting tear gas into the house, they were still entitled to qualified immunity. The panel held that given that defendants thought they … Continue reading
KS: If the officer had RS, he waited 24 minutes to call for a drug dog and then couldn’t get one for hours; stop too long and unreasonable
The officer supposedly had reasonable suspicion early into the stop, but he delayed 24 minutes before even attempting to locate a drug dog and it was then found that a drug dog couldn’t get there for quite a while. The … Continue reading
KS: The state has to plead inevitable discovery and allow a record to be made or it defaults it
All the factors of inevitable discovery favor suppression of the evidence, even under Strieff. Moreover, for the state to claim inevitable discovery, it has plead it in the trial court and allow a record to be made. State v. Sanders, … Continue reading