The state’s claim of a Heien-type mistake of law fails. The statute is not ambiguous, and the defendant didn’t violate it. State v. Trout, 2019 Ohio ___, 2019 Ohio App. LEXIS 124 (5th Dist. Jan. 15, 2019).
Defendant operated a medical marijuana grow in Michigan. He was subjected to a search, and he was indicted federally. He can’t meet his burden to enjoin the federal prosecution for violating the state MMJ statute under the federal appropriations act that limits use of federal funds from interfering with state MMJ activities. United States v. Trevino, 2019 U.S. Dist. LEXIS 7917 (W.D. Mich. Jan. 16, 2019).*
Posted inReasonableness|Comments Off on OH5: State’s claim of reasonable mistake of fact rejected: statute not ambiguous and not violated
Plaintiff adequately pled that defendant officers, members of CPD Team 6713, were engaged in a theft and robbery ring where they used bogus and apparently real search warrants to rob their victims. Motion to dismiss for failing to state a claim is denied. Robles v. City of Chicago, 2019 U.S. Dist. LEXIS 9022 (N.D. Ill. Jan. 18, 2019): Continue reading →
Posted in§ 1983 / Bivens, Police misconduct|Comments Off on N.D.Ill.: Ptf adequately pled that def officers used SWs as excuse to commit theft and robberies of search targets
A school security officer gets qualified immunity for a patdown search of 21 students in a class for allegedly stolen money because there was reasonable suspicion as to all 21. Woods v. Rio Rancho Pub. Schs, 2019 U.S. Dist. LEXIS 8236 (D. N.M. Jan. 17, 2019).*
Defendant claimed in his Rule 60(b) effort to supplement a 2255 petition, that there was fraud on the court in obtaining the search warrant in his case: “Additionally, Black cannot make the requisite showing as to his Rule 60(b) motion. In his motion, Black merely made a conclusory allegation of fraud committed by the government without providing any evidence, and he did not allege how the government’s alleged fraudulent conduct prevented him from fully presenting his case. Waddell v. Hendry Cty. Sheriff’s Office, 329 F.3d 1300, 1309 (11th Cir. 2003). Thus, reasonable jurists would not debate the district court’s denial of Black’s Rule 60(b) motion. Accordingly, Black’s motion for a COA is DENIED.” Black v. United States, 2019 U.S. App. LEXIS 1502 (11th Cir. Jan. 17, 2019).*
Posted inQualified immunity, Reasonable suspicion|Comments Off on D.N.M.: Pocket and backpack search and patdown of 21 students at school for stolen money was with RS so officer gets QI
Seizure of defendant’s clothing from a hospital room floor was justified by the plain view doctrine. United States v. Clancy, 2019 U.S. Dist. LEXIS 8471 (W.D. Tenn. Jan. 17, 2019).
City inspectors entering into public business areas did not violate the Fourth Amendment or invade any reasonable expectation of privacy. S. Allegheny Pittsburgh Rest. Enters. v. City of Pittsburgh, 2019 U.S. Dist. LEXIS 8314 (W.D. Pa. Jan. 17, 2019).*
Because officers did not ask defendant for the combination to his safe to search it under a warrant, he was not required to have the Indiana Pirtle advisement before they searched it. Brown v. State, 2019 Ind. App. LEXIS 14 (Jan. 15, 2019).*
On the totality of evidence, there was a substantial basis for concluding there was probable cause for issuance of the three search warrants in this case, and the motion to suppress was properly denied. State v. Carpenter, 2019-Ohio-58, 2019 Ohio App. LEXIS 66 (3d Dist. Jan. 14, 2019).*
Posted inProbable cause, Warrant execution|Comments Off on IN: Advice of Pirtle rights before search of safe under SW not required
Plaintiff stated a Franks claim that his arrest warrant was based on false evidence and omitted exculpatory evidence. The officer is denied qualified immunity. Rainsberger v. Benner, 17 2521 (7th Cir. Jan. 15, 2019): Continue reading →
Defendant’s clothing was properly seized under the plain view doctrine whether he was a suspect or a victim. Defendant also didn’t have standing in the car involved because it wasn’t his. United States v. Hood, 2019 U.S. Dist. LEXIS 5357 (N.D. Ga. Jan. 11, 2019).
There is no reasonable expectation of privacy in jail calls. Here, the court goes one step further and finds implied consent from making the call when hearing notice that the calls are being recorded. United States v. Christensen, 2019 U.S. Dist. LEXIS 6167 (C.D. Ill. Jan. 14, 2019).
Six month delay in getting a search warrant for a hard drive in a child pornography case was unreasonable. The government could give a good reason for the delays which might have justified it. Search recommended suppressed. United States v. Fife, 2018 U.S. Dist. LEXIS 218951 (N.D. Iowa Dec. 26, 2019).*
Defendant was stopped for going 43 in a 40, and that was a justified stop. The stop was based on the information from another officer under collective knowledge, and there was reasonable suspicion to continue the stop. Pier v. State, 2019 WY 3, 2019 Wyo. LEXIS 4 (Jan. 11, 2019)
Posted inComputer searches, Reasonable suspicion|Comments Off on N.D.Iowa: Six month unjustified delay in getting SW for hard drive made search unreasonable
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
"If it was easy, everybody would be doing it. It isn't, and they don't."
—Me
“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
"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)
