NOTES ON USE
A. Ground Rules:
1. THIS WEBSITE IS NOT A REPLACEMENT FOR THE BOOK. It is: (a)
a daily summary of search and seizure cases and news, and (b)
an aid to owners of the book to supplement it. See ¶s 5-6
of the disclaimer in part B at the end of this page. [I get feedback
from those how tell me that some users of this website find that
"has too much information" and "is unusable."
These users do not know what this website is for, they never paid
attention to the first sentence above when it was on the home
page, and they cannot be helped if they think this substitutes
for the book.] Let's be realistic here: I get royalties from the
book and supplement, and I am not about to compromise Lexis' ability
to sell them which hurts both of us.
2. Acronyms: These should be obvious to those involved in the
criminal justice system:
BOLO = be on the look out
CI = confidential informant
DL = driver's license
GFE = good faith exception
IAC = ineffective assistance of counsel
LEO = law enforcement officer (a police term, not a lawyer term)
MSJ = motion for summary judgment
PC = probable cause
PO = probation or parole officer
QI = qualified immunity
REP = reasonable expectation of privacy
RS = reasonable suspicion
SI = search incident
SJ = summary judgment
SW = search warrant
UA = urinalysis
* = a case unlikely to make it to the supplement because it involves
a basic RS or PC finding or is factbound or redundant.
2. A footnote ending in ".1" or the like indicates new
text in the supplement. Not having the book and current supplement
will make one's research incomplete.
3. Timing of Postings:
a. Case citations come to me through a Lexis Eclipse® search
arriving around 5:30 a.m. Central Time. Postings to this website
are made usually, depending upon various factors in my real work
schedule and life, within three hours of receipt from Lexis. I
am a practicing criminal defense lawyer, and I cannot bring myself
to work on the web site on days I am in trial or having an appellate
argument first thing in the morning. I can tell from usage statistics
that the first peak in usage is around 9 a.m. Eastern Time, and
I try to meet that goal, but I cannot guarantee it.
b. Supreme Court cases are noted as soon as I find out about them
and I can get the syllabus either from the Court's website or
Lexis. If I am in court or on the road when that happens, that
posting will be late, but it will be up as soon as possible. I
have occasionally beat the news services in posting cases because
I was looking for a case and quickly found it posted, but I also
find out about most from list servs and news reports. If, however,
I am in trial, I can't be posting immediately. (The day the Supreme
Court called in 1995 to say I won Wilson v. Arkansas I was in
trial until 6 p.m. that evening.) This website did not exist back
then, but that is an example.
c. Every once in a while, a case either slips through the Eclipse
search, I must have overlooked it, or it becomes published after
it was passed over because I believed it was unpublished or it
slipped through the Eclipse net. In those cases, the case is noted
as soon as it is found. Some courts have cases in the hands of
Lexis overnight, but some take months. I see a pattern developing,
but I'm not yet revealing what the states are. You can see some
at change of the new year. Sometimes states take several months
to get their cases to Lexis.
d. Updated citations are posted as long as new citation comes
out while the case is still on the home page. Periodically, time
permitting, all citations are run through Lexis Shepards®
to insure completeness.
4. Unreported cases: Unreported cases do not get posted because
they usually lack authority in their local jurisdiction. I simply
do not have the time to read unreported cases, too. I already
average 8 hours a week on this website, and nonpublished cases
just aren't relevant 99.5% of the time. Once in a while, a court
buries a good case in unpublished, and I find out about it and
use it. Some states don't publish, but everything is potential
authority. Ohio, for example.
5. The author is a practicing criminal defense lawyer whose expertise
in search and seizure cases is available for retained consultation
and representation. The author does, however, provide free limited
consultation for criminal defense lawyers who are members of NACDL.
If you think I am too expensive, you should consider hiring my
associate, Patrick J. Benca. Within five years of passing the
bar, he won nearly 25 search and seizure appeals, one of which
became an ALR Annotation.
B. Disclaimer and Other Legalese:
1. LexisNexis® has no connection to this web site.
2. The use of this website does not constitute the rendering of
legal advice by the author to the reader.
3. Without access to the printed book and its current paper supplement,
parts of this electronic supplement may appear to or be misleading.
Therefore, readers run the risk of taking something out of context.
4. Every effort is made to update this web site daily before 9
a.m. Eastern and to periodically Shepardize® the citations.
As stated above in A.3.a., I have a day job and answerable to
courts, clients, and other obligations. And, I try to have a life.
All of this sometimes limits this website to being updated late
in the day or only every other day. It happens. I can tell by
usage statistics that visits really start after 9 a.m. Eastern,
so that is my goal.
"If it was easy, everybody would be doing it. It isn't, and they don't."
"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."
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."
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
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
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."
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."
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."
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.”
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.”
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
“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."
"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
v. United States, 333 U.S. 10, 13-14 (1948)