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- Cal.1st: Minor in possession of MJ is PC for search of car
- D.P.R.: Def waived his Franks by providing nothing to show what’s what
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- D.Utah: Drug dog arriving within 7 minutes was reasonable and part of the initial stop
- D.Kan.: Preliminary hearing moots claim of lack of PC for arrest
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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: March 2020
D.Alaska: No Franks duty to tell issuing magistrate of failed challenges to same CP search software elsewhere
The FBI agent applying for the search warrant had no Franks duty to tell the issuing magistrate that Torrential Downpour, the software they were using, had been challenged elsewhere where the challenges had failed. United States v. Schwier, 2020 U.S. … Continue reading
NJ: GSR subject to search incident
Swabbing defendant’s hands for GSR at the police station shortly after arrest was valid as a search incident. The detectives called the assistant state’s attorney on duty, and he advised that they didn’t need a warrant because of the ready … Continue reading
Politico: DOJ seeks new emergency powers amid coronavirus pandemic
Ignoring the fact that “the Fourth Amendment requires a judicial determination of probable cause as a prerequisite to extended restraint of liberty following arrest,” Gerstein v. Pugh, 420 U.S. 103, 114 (1975), and reasonable bail, we see this: Politico: DOJ … Continue reading
CA2: Eyewitness report and identification of ptf was probable cause for arrest
Eyewitness report and identification was probable cause for arrest, so summary judgment was proper for the officer. Tortora v. City of New York, 2020 U.S. App. LEXIS 8135 (2d Cir. Mar. 12, 2020).* The court credits the officers’ testimony that … Continue reading
PA: Syringes in plain view on floorboard was PC
Officer’s seeing syringes on the floor of defendant’s car just by looking was plain view and probable cause for search. Commonwealth v. Bumbarger, 2020 Pa. Super. LEXIS 206 (Mar. 16, 2020).* “Mr. Sealey’s motion to suppress, the court did not … Continue reading
D.N.M.: Search of camper being lived in parked on the street in violation of ordinance was inevitable
The question of standing and alleged illegal search of defendant’s camper were moot. The camper was parked on an Albuquerque city street where it’s illegal to live in a camper. Given those facts, the camper would have otherwise been inventoried, … Continue reading
AL: Officer was lawfully in position for plain view of def’s computer screen
The trial court erred in suppressing the search here because the officer who did it was a law enforcement officer under state law able to do so. On the merits, the officer was in position to make a plain view … Continue reading
NE: No IAC for not objecting to authentication of cell phone records obtained by SW
It was speculation that if the defense had objected to authentication of cell phone records obtained by search warrant that the objection would have been sustained. No IAC on this ground. State v. Sierra, 305 Neb. 249 (Mar. 13, 2020). … Continue reading
S.D.W.Va.: Smell of marijuana is PC to search in spite of legalization of hemp
The smell of marijuana is probable cause to search in spite of legalization of hemp. United States v. Boggess, 2020 U.S. Dist. LEXIS 44319 (S.D. W.Va. Mar. 13, 2020):
The Intercept: A New York Police Officer Was Caught on Camera Apparently Planting Marijuana in a Car — for the Second Time
The Intercept: A New York Police Officer Was Caught on Camera Apparently Planting Marijuana in a Car — for the Second Time by Alice Speri (“When a police officer in Staten Island was caught by his own body camera in … Continue reading
lawfare: Is ICE’s Use of a Maryland Facial Recognition Database Lawful?
lawfare: Is ICE’s Use of a Maryland Facial Recognition Database Lawful? by Nathaniel Sobel (“The Washington Post reported recently that U.S. Immigration and Customs Enforcement (ICE) officials have accessed, without obtaining judicial process, a Maryland facial recognition database that contains … Continue reading
EFF: Unchecked Smart Cities are Surveillance Cities. What We Need are Smart Enough Cities.
EFF: Unchecked Smart Cities are Surveillance Cities. What We Need are Smart Enough Cities. By Jamie Williams (“Cities across the U.S. are forcing operators of shared bikes and scooters to use dangerous and privacy invasive APIs developed by the Los … Continue reading
WaPo: U.S. government, tech industry discussing ways to use smartphone location data to combat coronavirus
WaPo: U.S. government, tech industry discussing ways to use smartphone location data to combat coronavirus by Tony Romm, Elizabeth Dwoskin, and Craig Timberg (“The U.S. government is in active talks with Facebook, Google and a wide array of tech companies … Continue reading
techdirt: Florida PD’s Reverse Warrant Leads To Innocent Man Being Targeted In A Robbery Investigation
techdirt: Florida PD’s Reverse Warrant Leads To Innocent Man Being Targeted In A Robbery Investigation by Tim Cushing (“Cops are using reverse warrants with increasing frequency, inverting the usual investigation process by demanding info about everyone in a certain area … Continue reading
GA: Failure to bring up record of suppression hearing held instead in a connected case was waiver
Defendant was charged under indictment 1 and had a suppression hearing. He was reindicted in indictment 2 and went to trial in that case. When he appealed, the record of conviction under indictment 2 came up for appeal and no … Continue reading
OH2: On inventory of car owned by another, the police have no duty to call the owner
This inventory for driving another’s car without a license was reasonable. It followed policy, and there was no duty to call the owner to retrieve it to avoid the inventory. State v. Allen, 2020-Ohio-947, 2020 Ohio App. LEXIS 868 (2d … Continue reading
CA1: Community caretaking function can apply to dwellings, too, when there’s a public safety issue
Following other jurisdictions, the court holds that the community caretaking function applies to private residences as well. Here, the plaintiff was acting erratically and his wife called the police. It was reasonable to seize his guns when he was sent … Continue reading
GA: Def made no effort to show standing in girlfriend’s cell phone
CSLI was admitted involving defendant’s girlfriend’s cell phone that defendant was using. He made no effort to show standing in the cell phone. Defense counsel wasn’t ineffective for not raising standing. Albright v. State, 2020 Ga. App. LEXIS 187 (Mar. … Continue reading
N.D.Okla.: Patdown for weapons that became an investigative search was unreasonable
Defendant concedes the basis for the stop but not the justification for a patdown. The court finds reasonable suspicion on the totality extreme (not ordinary) nervousness. But, the search was excessive, and the motion to suppress is granted. “The Court … Continue reading