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- NY: Failure to show independent source for officer’s observation of def required reversal
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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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Fourth Amendment cases,
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Congressional Research Service:
--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: September 2020
S.D.Fla.: Arresting ptf for giving officer the finger after denial of access to city council meeting lacked arguable PC
Officer didn’t have arguable probable cause for arresting plaintiff outside a city council meeting plaintiff had been ordered out of when plaintiff gave the officer the finger. Qualified immunity denied based on the allegations of the complaint. McDonough v. Mata, … Continue reading
E.D.Ky.: Late night view through def’s apartment window violated Jardines but there was still PC without it
Officers conducted a drug investigation into defendant’s apartment and ultimately went to his window in the night to look in and used a flashlight. That was a violation of the Fourth Amendment under Jardines, and the view has to be … Continue reading
S.D.Tex.: Officers’ encounter with def two hours after a shooting wasn’t exigency for home entry
The government failed to prove any exigency for the entry into defendant’s house. He was encountered outside two hours after a shooting, and it was apparent nobody was in any need of assistance, including him. United States v. Curtis, 2020 … Continue reading
IL: Failure to attempt to suppress CSLI was harmless error, even if could have been successful
Failure to make a Carpenter argument was harmless error under the proof. People v. Ayoubi, 2020 IL App (1st) 180518, 2020 Ill. App. LEXIS 664 (Sept. 29, 2020). A stop may be valid under Terry, but the officer still needs … Continue reading
techdirt: DHS Probably Didn’t Clone Phones To Intercept Protesters’ Communications
techdirt: DHS Probably Didn’t Clone Phones To Intercept Protesters’ Communications by Tim Cushing:
S.D.Ohio: Nervousness of driver and two passengers in rental car wasn’t RS; detention was unreasonable
“The officers here initiated investigative activities that prolonged the traffic stop, but are unable to articulate grounds, existing when they started those investigative activities, giving rise to a reasonable suspicion of criminal conduct. And no exception to the exclusionary rule … Continue reading
N.D.Ohio: Paraphrasing and not quoting what a witness said isn’t a Franks violation
“Jones offers a laundry list of complaints about the text of the search warrant affidavit: … [¶] Jones fails to make a ‘substantial preliminary showing that specified portions of the affiant’s averments are deliberately or recklessly false.’ [Officer] Brotherton did … Continue reading
S.D.Ga.: Where def lost 4A claim on merits, he can’t relitigate it as an IAC claim
“Petitioner already presented his suppression argument to the Eleventh Circuit, and it was rejected. He now attempts to relitigate the claim by cloaking it in an ineffective assistance claim. However, Petitioner fails to establish Mr. Crowder’s decision not to pursue … Continue reading
CO: cert. gr.: Whether cell phone details beyond number obtained by illegal arrest should be suppressed; or, is cell phone number particular enough?
“Whether the court of appeals erred in determining that the warrant to search Petitioner’s cell phone and supporting affidavit satisfied the Fourth Amendment’s particularity requirement, where all descriptive information about the phone except the telephone number was obtained as a … Continue reading
MN: Driver’s potential violation of a pretrial release condition justified extending stop
The driver’s potential violation of a pretrial release condition observed by the officer was sufficient justification for extending a traffic stop first based on failure to signal. Violation of a condition of release could be a criminal violation. State v. … Continue reading
GA: Even if pre-Carpenter CSLI was error [not] it was harmless error
Even if the good faith exception doesn’t admit CSLI before Carpenter, it’s harmless error. “At the time of Hill’s 2014 trial, controlling precedent held that a search warrant was not required to obtain cell site location data.” “Here, the cell … Continue reading
OH4: Arrest for violation of a statute later held unconstitutional didn’t bar trial under later version of statute
Defendant’s arrest under a statute later held unconstitutional didn’t bar him from being tried under a later version of the statute that was constitutional. State v. Bartholomew, 2020-Ohio-4611, 2020 Ohio App. LEXIS 3465 (4th Dist. Sept. 17, 2020). The fruit … Continue reading
DE: One heroin deal and returning home isn’t nexus
Surveillance of one trip home after a heroin deal doesn’t show nexus to the premises where defendant lived. State v. Jones, 2020 Del. Super. LEXIS 2798 (Sept. 24, 2020):
CA11: That state court’s 4A ruling was wrong isn’t ground for habeas relief
Habeas petitioner’s allegation state court decision on his Fourth Amendment claim was erroneous isn’t enough to get appellate review under Stone. CoA denied. Cisneros v. Sec’y, Dept. of Correction, 2020 U.S. App. LEXIS 30618 (11th Cir. Sept. 24, 2020).* There … Continue reading
Vox: Recode: Amazon’s surveillance cameras fly now — which is unsettling
Vox: Recode: Amazon’s surveillance cameras fly now — which is unsettling (“Amazon has announced a new way for consumers to surveil their own homes: a camera-equipped drone that connects to Ring security systems. Ring, which Amazon owns, has a history … Continue reading
E.D.N.Y.: Fruit of the poisonous tree doctrine doesn’t apply in § 1983 cases in CA2
The fruit of the poisonous tree doctrine doesn’t apply in § 1983 cases in the Second Circuit. Therefore, illegally seized evidence can be considered for probable cause to arrest. Smith v. Degirolamo, 2020 U.S. Dist. LEXIS 176310 (E.D. N.Y. Sept. … Continue reading
KS: One who doesn’t have an administrative license can’t challenge the administrative search scheme under it
An unlicensed entertainment establishment has no standing to challenge the administrative search provision under the licensing scheme. City of Wichita v. Trotter, 2020 Kan. App. LEXIS 69 (Sept. 25, 2020):
AL: Manipulating object in pocket of person leaving a drug house exceeded Terry
Defendant’s patdown resulted in an impermissible Terry and Dickerson search of her pocket. The state never showed it was apparent that the object being manipulated was a weapon. It was a search for drugs because she was stopped leaving a … Continue reading
CA9: Using ruse to get def home to search his car under a SW was unreasonable
Officers had a warrant for defendant’s house and any cars parked there, but defendant wasn’t home. Using a ruse of a burglary having happened, they lured him home so they could search the car. The search of the car was … Continue reading