Last comments

In response to: So long Nifong

KEVIN JAY LONG [Visitor]
Prosecutorial misconduct has been and continues to be a palpable problem in this country. To correct it, defense attorneys must acquire the wherewithal to file prosecutorial misconduct motions whenever warranted. Most defense attorneys are reticent to file these motions, because they are lazy, do not know the law, or believe that doing so is politically incorrect. However, after repeatedly fielding such motions, hopefully our judiciary, most of whom were prosecutors, will wake-up and realize that prosecutorial misconduct brings our criminal justice system further into disrepute because it is unlawful, offensive, insulting, ignorant, and increases the risk of convicting innocent defendants.

Kevin Jay Long, 773-545-2615, MEDICOLEGAL1@JUNO.COM
PermalinkPermalink 07/05/07 @ 13:48

In response to: Devlin kidnapping case: Was a search warrant required for the entry to rescue? No, assuming probable cause exists

Rick [Visitor]
Question(s): Would it really matter if they had a warrant? What would be excluded? Wouldn't the children still be able to testify as to what happened?
PermalinkPermalink 01/15/07 @ 16:04

In response to: Nevada casino security guards have statutory authority to arrest

United States v. Cuevas-Robledos

the Court first must look to whether Agent Velarde's contact with people in the bus station at large was consensual.

That happens if you are one of the
FIRST ones to be asked?

Then, there is no frame of reference
to go by!
PermalinkPermalink 01/13/07 @ 00:38

In response to: Comments anyone?

fourth [Member] · http://www.fourthamendment.com
Made you look. JWH
PermalinkPermalink 01/10/07 @ 20:09

In response to: Thoughts on 2007

karl keys [Visitor]
ditto
PermalinkPermalink 01/10/07 @ 00:58

In response to: Santa Barbara to fingerprint elementary school students for cafeteria use

Agent KGB [Visitor] · http://agentkgb.wordpress.com/
They just started something similar to this in another state, where they also want to expand to include buses and other places (though there parents are allowed to opt-out of the finger scanning). People will go awfully far for convenience, I can imagine some people who wouldn't object to implanted chips if they were faster than the finger scans.
PermalinkPermalink 01/08/07 @ 18:08

In response to: Rehnquist's FBI file made public under FOIA; some surprises

Rehnquist Researcher [Visitor] · http://william-rehnquist.com
The only online version of the 6 released sections of the William Rehnquist FBI file is available at http://william-rehnquist.com where over 1300 pages from the file are available as images for your study.

Quite interesting as both a political document and historical artifact.
PermalinkPermalink 01/08/07 @ 09:29

In response to: Thoughts on 2007

Orin Kerr [Visitor] · http://volokh.com
Thanks for the great site, John. I read it every day.

Orin Kerr
Associate Professor
George Washington University Law School
Washington, DC
PermalinkPermalink 01/02/07 @ 00:44

In response to: Thoughts on 2007

David B. Chontos [Visitor]
While I appreciate your thank you for being a reader, that thanks pales in comparison to the thanks coming your way for doing what you do. Your time and effort has allowed me to be a better lawyer.
PermalinkPermalink 01/01/07 @ 15:00

In response to: Police detention of all underage persons at a frat house party with alcohol was unconstitutional

dwarren [Member]
Without reading the defendant's brief it's impossible to know what cases were cited to support his argument, but how about Corea v. State, 52 S.W.3d 311 (Tex. App. 2001)?

Among the more relevant highlights from that case:


Brother-in-law, who lived in defendant's apartment, but was not co-lessee, did not have actual authority to consent to search of defendant's bedroom, even though it was not locked, where brother-in-law told officers that no one other than defendant lived in room, and no evidence indicated that defendant gave explicit or implicit consent to brother-in-law to enter bedroom.

Law does not require people to close and lock their bedroom doors to foreclose a conclusion that anyone with access to the common areas of a house or apartment also has access to their bedroom, for purposes of ensuring that others do not have authority to consent to search of bedroom; an unlocked door is not an invitation to enter.


So does the analysis change simply because one uses a spare bedroom as an office rather than sleeping quarters?

Moreover, the court in Hebert states that "nowadays in American society a computer is just about as common as a telephone or a refrigerator." But a computer is quite different than any of those other commonly shared household items. At best, it's a hybrid because it's also the repository for a vast array of private information. Food & phone numbers are not the equivalent of files & photographs.

If families followed the court's reasoning, each family member would need to have their own PC to have an expectation of privacy in their data. If the PC is, as the court states, such a common household item these days (and it is), then password protecting it will block other family members from using this vital tool. Yet, that seems to be one of the key factors in the court's analysis.

It appears each family member needs to create their own individual user ID or account & password if a single PC is being used by everyone. Alternatively, users will need to start password protecting files & folders (e.g. - see this link:
http://www.softheap.com/ffp.html).

Otherwise, in the court's view, storing private information on a computer is the same as tossing your mail on the living room coffee table.

PermalinkPermalink 12/30/06 @ 02:13

In response to: Consent to look in a car in New York is not consent to search it

Scott M. [Visitor]
If the police had a reason to believe that a child's safety was immediately at issue, then I can understand a warrantless entry (assuming that they really saw a child with at least some signs of injury, and had information of abuse). I have a hard time understanding how the discovery of drugs would not be suppressed. Apparently, if the warrantless entry is legal under any doctrine (in this case, rescue), then everything found if fair game. I think the Court's should limit the scope of admissible evidence to the rescue. Otherwise, "rescue" could be used a pretext by police who really intend to look for other criminal activity.
PermalinkPermalink 12/25/06 @ 07:10

In response to: CNN.com: "Police want bullet in teen's forehead"

jb [Visitor]
I'm a surgeon. If you get me a proper warrant and approval from my state medical board, I can get that bullet out in 15 minutes in my office. The procedure will not be risk free, but will be less risky than sitting on a couch in an apartment.

Question for the lawyers: I know that Bush's refusal to testify can not be used to imply guilt. Can his refusal to undergo a simple surgical procedure be used to imply guilt? (Assume that the police lab will be able to tell for certain if he is guilty or innocent for this argument).
PermalinkPermalink 12/23/06 @ 21:34

In response to: Updated post: Ruttenberg v. Jones

Neil Ruttenberg [Visitor]
The issue involved goes beyond the use of an administrative search, i.e., an ABC inspection, to perform what in fact is a criminal search without a warrant. Had the office searched been part of the ABC licensed facility, there would be no legal or constitutional problem. Here, however, the raiders(searchers) who were unable to get a warrant, knew in advance that the office was not part of the licensed premises and searched it anyhow. At a subsequent ABC admin hearing, the chief ABC officer, who himself conducted the search of the office, admitted under oath that the office was not covered. Charges of unauthorized alcohol, based on the seizures from that office, had to be dropped. Accordingly there was a search and seizure with neither warrant nor covering administrative authority. An absolutely clear, premeditated violation of the 4th Amendment.

Although the foregoing was clearly specified in the complaint, the Eastern District, in its zeal to protect investigative state actors, ignored the facts. I find that scary with respect to the ongoing fight to preserve citizens constitutional protections. I am planning an appeal, on this issue and others, to the 4th Circuit.
PermalinkPermalink 12/23/06 @ 09:32

In response to: AP: "Ex-cop plans 'don't get busted' video"

Mike Smithson [Visitor] · http://www.leap.cc
Barry Cooper is a speaker for Law Enforcement Against Prohibition or "LEAP", an org of cops, judges, prosecutors and others in the criminal justice system who call for an end to the Drug War.
http://www.leap.cc
PermalinkPermalink 12/23/06 @ 07:53

In response to: Home Depot's ad on "pulled over Santa" too close for comfort

Zed [Visitor]
What you might find ironically amusing is that the actor playing the police officer in that commercial is actually an LAPD SWAT officer. He pursues acting in his off duty free time. I'm personally aware of at least two other roles he played on television where he also played a police officer.
PermalinkPermalink 12/20/06 @ 04:57

In response to:

SBD [Visitor]
This case involves an acquaintance of mine who is currently being
defended by a Public Defender. At the Prelim Hearing, the DA's
first complaint stated that the Defendant was stopped to conduct a
probation search. The DA corrected this error before the hearing. At
the hearing, the detective stated that he requested the Defendant's
vehicle be detained because her tires were more than 18 inches away
from the curb while he observed her getting her vehicle jump started.
This information was never mentioned in the police report. The
officer at the hearing testified that he stopped the vehicle because
of tinted windows on the PT Cruiser. This information was never
mentioned in the police report either. His last statement at the
hearing was that he had a shift change and left the scene about 30
minutes after the initial stop. The Public Defender had no further
questions after this revelation. During that 30 minutes, the
detective searched the vehicle thoroughly and I am sure was frustrated when no contraband was found. At this point, the Defendant was arrested for DUI and was transported to her residence to conduct a probation search.

The search of the residence found very little as far as the amount of
contraband. The only major item that I am sure they were thrilled to
find was 2 bottles of Morphine which actually belonged to the Defendant's father, a Vietnam Veteran. She submitted to a blood test and was supposedly evaluated by a DRE. I say supposedly because she never submitted to a breath test which is the first step in the DRE examination. Defendant's trial was scheduled for October 12, but when Defendant went to court, the trial was not scheduled.

Here is the latest email from the Public Defender. The case now set for January 12, 2007 due to officer being on vacation.

Obviously the court made an error on your case and continued the jury
trial until December 12, 2006 instead of October 12, 2006. We will
proceed to trial at that time.

I have obtained your father's medical records and discussed resolving this case with the DA's office. Although our defense to the
possession of morphine charge is not a clear cut winner for us because
of the passage of time since your father was at your residence
according to your statement in the police report, and the lack of
prescription information on the bottles, the DA is never the less
willing to dismiss the felony possession charge and allow you to plea to the Driving under the influence of a drug and being under the influence of a drug charges (both misdemeanors) and allow you to be reinstated on probation on the older felony case. They would agree
that the mandatory 90 day jail sentence could be served at a work
furlough facility if you have a job. Otherwise you would serve around 50 days in jail. If you are interested in this resolution please let me know. We can then calendar the case in department 31 for
resolution any time in the next month.


It seems odd to me that the trial delay and the plea offer just happen
to come at the same time as the receipt of the medical records which
poked a major hole in the DA's case. Also, the Defendant's 3 year
probation ended this past May, two months after the arrest and no revocation hearing has ever taken place.

I know there is a lot to look at here, but the offer to plead guilty
to a DUI when that wasn't even the reason for the stop looks like an
attempt to bolster the DA's record since DUI Drug cases are much
harder to prosecute.

The Defendant moved her father's belongings from his residence to hers while he was out of the country and that is the reason that the Morphine ended up at her place, still sealed by the way.

The more important aspect in this case is the search. If they searched the car, found nothing, and then arrested the Defendant for DUI, does that then give them the right to conduct a probation search using the fourth waiver and take the Defendant back to the Defendant's house to conduct that search when the Defendant was already under arrest?
PermalinkPermalink 12/18/06 @ 18:23

In response to: Home Depot's ad on "pulled over Santa" too close for comfort

dwarren [Member]
Santa must have been stopped in Oregon. State v. Amaya, 89 P.3d 1163 (Or. 2004) (officer's questions to vehicle passenger, about the contents of her bag, were covered by statute allowing an officer, during valid traffic stop, and without any requirement of reasonable suspicion, to "make an inquiry to ensure the safety of the officer, the person stopped or other persons present, including an inquiry regarding the presence of weapons," though officer did not expressly ask whether bag contained a weapon).

In fact, if the cops asked Santa or his elf for permission to search his sleigh Oregon might find it voluntary. State v. $113,871 in U.S. Currency, 954 P.2d 218 (Or. App. 1998) (passenger's consent to search trunk and personal case inside trunk was valid, notwithstanding fact that state trooper did not have authority under statute to ask questions about subjects other than traffic stop at time trooper initiated questioning that led to consent, where officer's premature questioning before passenger had real opportunity to leave scene did not impair passenger's free will under totality of circumstances).

It's unlikely the stop of Santa took place in New York. People v. Cirrincione, 206 A.D.2d. 833 (N.Y. App. 1994) (where officer approached defendant's parked vehicle and, after asking if there were any problems, asked additional questions regarding contents of bags and whether defendant minded if officer checked them out, encounter became common-law inquiry that must be supported by founded suspicion, and defendant's suspicious response to such questions could not serve as lawful predicate for officer's subsequent detention of defendant).

Stay away from Oregon, Santa.

As an aside, more & more U.S. companies are turning to Canada for their media productions. For example, most of the Disney Channel's sitcoms are produced there.

Section 8 of the Canadian Charter of Rights and Freedoms states that "Everyone has the right to be secure against unreasonable search and seizure." However, it's not the same as the Fourth Amendment in the United States Constitution. R v. Blake, 42 CCC.2d 271 (Man. Prov. Ct. 1988) (individual rights are subordinate to the collective rights of society, and freedoms in the Charter are not always supreme).

Stay away from Canada as well, Santa.

PermalinkPermalink 12/15/06 @ 02:13

In response to: NYPD kills unarmed suspect in hail of bullets after bachelor party; 50 shots fired at car

Evonne Newton [Visitor]
I am sorry there have been too many incidents to count. NYPD has a notorious reputation for killing citizens. It cannot be possible in every case NYPD was the innocent party. I live in Prince Georges County Maryland. Our police department has been investigated by the federal authorities for killings and beatings. They have also settled with several families to make them go away following these many incidents. I personally was stopped for speeding one day. As the officer wrote my ticket he proceeded to tell me how bad his writing was because he attended P.G. County public schools. My first instinct was to ask him what does that have to do with anything. But given the history of the P.G. County Police I kept quiet. Meanwhile I am alone in my car on a dark road. At least 3 to 4 other police cars pulled up. All of that for a speeding ticket? I immediately called my Mom and asked her to stay on the line with me. I can only imagine how a black male would have felt in my situation. Or worse how he would have been treated.
PermalinkPermalink 12/07/06 @ 13:38

In response to: NYPD kills unarmed suspect in hail of bullets after bachelor party; 50 shots fired at car

the problem here is more than simply racial or excessive force. the problem in the unfortunate situation with the late Michael Bell is systemic. the police department which is home to these vice officers is one of the many corrupt police departments of New York's inner city. others that are notorious for licentious practices could surely be named. I am a teacher in a high needs area and am from a high needs area. unfortunately, I have to still face many of the same problems that Sean Bell faced. the police at times provoke situations, do not follow proper protocol and that includes failing to identify themselves prior to drawing their weapons. I was arrested by this same unit in 2005 in a sting operation. they rounded up hundreds of young men like cattle on charges fromnot having proper I'd to minor drug possesion. in my situation I was let go but had to spend the night in booking and now I've been arrested. remember this is the same unit. I lost a job because of this. they wrote on the report that there was a marijuana cigarrette being smoked. I got harassed because I stared the undrcover vice unit down as they passed my car. I'm a grown man and I'd have to be an idiot to smoke a joint on Jamaica Ave at 7pm. hundreds of men arrested in one night and questioned about guns. this type of harassment and misconduct cannot be tolerated any longer. that night, as they drove us around in the police van, hand cuffed for hours looking to ''fill er up before bringin em in'', the only people they couldn't touch were the gang members. it shows how soft and effective their policing is. I don't endorse gang activity but there is strength in numbers and it is definitely time to fight back. come to Sean Bell's funeral and the rally afterwards on Friday. show your support. don't let the cops shoot us all. there are good people that are seriously affected by thee practices in a negative manner.
PermalinkPermalink 11/29/06 @ 09:42

In response to: More on the Atlanta shooting of an elderly woman during a drug raid

Mark Aaron [Visitor]
I was just convicted on a 35 count Federal Indictment which originated from an unlawful search and seizure. The government actually proved me innocent, yet the jury, like most americans, simply wanted to just go home; they did not have the knowledge to judge a complex case which involved the USA coming into my house in broad daylight, with guns, and STEALING EVERYTHING!!!! They even took $37 out of my 1 year old's piggy bank. The US government is OUT OF CONTROL and our citizens are BEING CONTROLLED!!!! I've spent hundreds of thousands of dollars on my case; maybe millions once the appeal process is over. DON'T Pray for ME, pray for yourselves. Most people are unaware of the 4th amendment, thus most people are trampled on each and every day. By the time they come crashing through YOUR front door, which will be soon, it will be too late. Stand up and fight now. "Fight with the pen before you are forced to fight with the sword" Mark Aaron.

marklaaron@comcast.net
PermalinkPermalink 11/28/06 @ 19:58

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2009 to date:

2013-14 Term:
  Riley v. California, granted Jan.17, argued Apr. 29 (ScotusBlog)
  United States v. Wurie, granted Jan.17, argued Apr. 29 (ScotusBlog)
  Plumhoff v. Rickard, granted Nov. 15, argued Mar. 4 (ScotusBlog)
  Stanton v. Sims, 134 S.Ct. 3, 187 L. Ed. 2d 341 (Nov. 4, 2013) (per curiam)
  Navarette v. California, granted Oct.1, argued Jan. 21 (ScotusBlog)
  Fernandez v. California, 134 S.Ct. 1126, 188 L. Ed. 2d 25 (Feb. 25) (ScotusBlog)

2012-13 Term:
  Maryland v. King, 133 S.Ct. 1958, 186 L.Ed.2d 1 (2013) (ScotusBlog)
  Missouri v. McNeeley, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013) (ScotusBlog)
  Bailey v. United States, 133 S.Ct. 1031, 185 L.Ed.2d 19 (2013) (ScotusBlog)
  Florida v. Harris, 133 S.Ct. 1050, 185 L.Ed.2d 61 (2013) (ScotusBlog)
  Florida v. Jardines, 133 S.Ct. 1409, 185 L.Ed.2d 495 (2013) (ScotusBlog)
  Clapper v. Amnesty International USA, 133 S.Ct. 1138, 185 L.Ed.2d 264 (2013) (ScotusBlog)

2011-12 Term:
  Ryburn v. Huff, 132 S.Ct. 987, 181 L.Ed.2d 966 (2012) (other blog)
  Florence v. Board of Chosen Freeholders, 132 S.Ct. 1510, 182 L.Ed.2d 566 (2012) (ScotusBlog)
  United States v. Jones, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012) (ScotusBlog)
  Messerschmidt v. Millender, 132 S.Ct. 1235, 182 L.Ed.2d 47 (2012) (ScotusBlog)

2010-11 Term:
  Kentucky v. King, 131 S.Ct. 1849, 179 L.Ed.2d 865 (2011) (ScotusBlog)
  Camreta v. Greene, 131 S.Ct. 2020, 179 L.Ed.2d 1118 (2011) (ScotusBlog)
  Ashcroft v. al-Kidd, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) (ScotusBlog)
  Davis v. United States, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011) (ScotusBlog)

2009-10 Term:

  Michigan v. Fisher, 558 U.S. 45, 130 S.Ct. 546, 175 L.Ed.2d 410 (2009) (per curiam) (ScotusBlog)
  City of Ontario v. Quon, 560 U.S. 746, 130 S.Ct. 2619, 177 L.Ed.2d 216 (2010) (ScotusBlog)

2008-09 Term:
  Herring v. United States, 555 U.S. 135, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009) (ScotusBlog)
  Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (ScotusBlog)
  Arizona v. Johnson, 555 U.S. 323, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009) (ScotusBlog)
  Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009) (ScotusBlog)
  Safford Unified School District #1 v. Redding, 557 U.S. 364, 129 S.Ct. 2633, 174 L.Ed.2d 354 (2009) (ScotusBlog)


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  FBI Domestic Investigations and Operations Guide (2008) (pdf)
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  Congressional Research Service:
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"If it was easy, everybody would be doing it. It isn't, and they don't."
—Me

"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud

"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

"There is never enough time, unless you are serving it."
Malcolm Forbes

"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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