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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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Daily Archives: December 10, 2019
EFF: Genetic Genealogy Company GEDmatch Acquired by Company With Ties to FBI & Law Enforcement—Why You Should Be Worried
EFF: Genetic Genealogy Company GEDmatch Acquired by Company With Ties to FBI & Law Enforcement—Why You Should Be Worried by Jennifer Lynch:
E.D.Pa.: Length of def’s participation in DTO undermines his staleness argument
There was probable cause defendant was a major player in a DTO, and that his participation went on for months. This, he concedes, undermines his staleness argument. United States v. Williams, 2019 U.S. Dist. LEXIS 211403 (E.D. Pa. Dec. 6, … Continue reading
E.D.N.C.: Officers came to the door with PC but no warrant; def’s shutting door and moving around inside led officers to believe he was destroying evidence, and entry was justified
When officers came to the door with probable cause for the presence of marijuana, defendant’s shutting the door and moving about inside for up to 90 seconds created apprehension that he was destroying evidence. Also, there was at least reasonable … Continue reading
CA6: Dodging the question when asked about a weapon during an investigative detention added to RS
Defendant allegedly had a motive to be violent, and, when officers asked him about whether he was armed, he dodged the question. The evidence supports the district court’s conclusion that there was reasonable suspicion for the intrusion. United States v. … Continue reading
W.D.Va.: Ongoing DV disturbance is exigency for a warrantless entry
“When Officer Hill entered Gates’s home, he held the reasonable belief that a violent domestic disturbance was ongoing, and that a woman was present in the residence and involved in the disturbance. This gave rise to a reasonable belief in … Continue reading
NV: OT: Relying on Kyllo, a digital blog is covered by the newpaperman’s privilege in confidential sources
Off topic, but significant: A digital news blog is covered by the nearly 50-year-old Nevada statute on protecting news sources and under the anti-SLAPP statute. Relying on Kyllo, the court finds that new technology has to be recognized under existing … Continue reading
D.Kan.: Consent search of truck led to PC it was hauling a lot of cash; use of a drill then to try to find it was reasonable
Defendant was stopped and consented to a search of his truck. The consent search led to probable cause to believe the truck was transporting a lot of cash. Using a drill to find the cash was reasonable once there was … Continue reading
LA4: Def’s entering and leaving a drug house wasn’t RS on its own
“Turning to the facts of this case, we also find the officer’s observation of defendant entering and exiting a residence that was reasonably suspected as being used for narcotics transactions to be insufficient to support a reasonable suspicion of participation … Continue reading
AR: Prosecutor also didn’t know for a year that an HBO documentary crew was present at search; no discovery violation on SW materials
About a year after the execution of the search warrant, the parties learned that an HBO documentary crew recording Meth Storm was along for the search. Citing Layne v. Wilson and Brady, the defense sought access to the video and … Continue reading
CA4: Police could warrantlessly seize CSLI for cell phone abandoned in flight from the police
Defendant consciously was abandoning his property as he was trying to elude police who were chasing him on foot. He tossed everything, including his cell phone. Getting the CSLI for the abandoned phone without a warrant was reasonable, too. United … Continue reading
CA6: There was already RS to detain the occupants of the car when def fled from it
“In total, we find that there was reasonable suspicion to block the white Saturn into the driveway. Taking together the smell of marijuana in an area known for drug violations, the person leaning into the car, and the car’s backing … Continue reading