- IL: Circumstances made SW affidavit admissible at trial
- Professional Responsibility in Criminal Defense Practice (4th ed. 2023) now on Westlaw
- IN: Fundamental (plain) error of S&S claims requires the evidence be fabricated, not just unconstitutionally obtained
- USA Today: A camera mounted on a light pole took video of police beating Tyre Nichols. What to know about ‘SkyCop.’
- Galveston Co. Daily News: Galveston SWAT team wrecks wrong house in search for wrong suspect
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Fourth Amendment cases,
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"If it was easy, everybody would be doing it. It isn't, and they don't."
“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!”"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."
---Pepé Le Pew
—Johnson v. United States, 333 U.S. 10, 13-14 (1948)
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Author Archives: Hall
The trial court abused its discretion in not permitting the defense to use the search warrant affidavit at trial that showed the warrant was targeting another person for other things other than what was found. The court cautions this may … Continue reading
The author’s Professional Responsibility in Criminal Defense Practice (4th ed. 2023) uploaded to Westlaw this morning. The book and ebook will be on the Thomson Reuters bookstore shortly. The table of contents is here. The first edition was published in … Continue reading
IN: Fundamental (plain) error of S&S claims requires the evidence be fabricated, not just unconstitutionally obtained
The fundamental error avenue to appeal an unobjected to search and seizure claim requires a showing that the evidence was all fabricated, not just that the search was bad. Evidence obtained by search and seizure is usually highly relevant to … Continue reading
USA Today: A camera mounted on a light pole took video of police beating Tyre Nichols. What to know about ‘SkyCop.’
USA Today: A camera mounted on a light pole took video of police beating Tyre Nichols. What to know about ‘SkyCop.’ by Claire Thornton:
The Galveston Co. Daily News: Galveston SWAT team wrecks wrong house in search for wrong suspect by Trace Harris:
As the driver of the car and the person with lawful possession, defendant had standing to challenge the search of the car he didn’t own. The GPS warrant for it was based on probable cause, and the warrant for firearms … Continue reading
Defendant’s car could be searched under the automobile exception while it was parked at his mother’s condo. Exigency isn’t specifically required. United States v. Chan, 2023 U.S. Dist. LEXIS 14062 (D. Haw. Jan. 27, 2023).* Even if defendant’s otherwise objectively … Continue reading
Orin S. Kerr, Terms of Service and Fourth Amendment Rights on SSRN:
GA: Sound of shuffling of feet after announcement of raid justified entry in 3 seconds; no weapons found
Officers entered within about three seconds after announcing and hearing shuffling of feet. Defendant was sitting on the couch, and there were no firearms. The test is whether there is a reasonable possible fear of firearms in the house that … Continue reading
WY: In felony domestic battery case, state showed nexus that evidence could likely be found in def’s journal
Defendant was convicted of strangulation of a family member. The family member reported to the police that he had been in counseling and was keeping a detailed journal trying to break the cycle of domestic abuse. The affidavit for the … Continue reading
W.D.Ky.: Search warrant affiant’s reference to water emoji wasn’t false or misleading; it here referred to meth, not sex
Defendant’s Franks motion fails. Defendants’ use of a water emoji could have been a reference to sex, but it could also be a reference to methamphetamine, as has come up in police training and in other cases such as United … Continue reading
Plaintiff alleged the Sheriff’s Office, after a search, gave the keys to his place to a convicted felon who stole from him. He has a state remedy, not a § 1983 remedy. Stone v. Taylor Cty. Sheriff Dep’t, 2023 U.S. … Continue reading
Subpoenas for documents under the state Consumer Fraud Act about the ability of average consumers to use plaintiff’s firearms for personal or home defense were enforceable under the Fourth Amendment. Plaintiff’s claims under other amendments are preserved for later. Platkin … Continue reading
Tasering a suspect before a search of the person doesn’t taint the search. They were unconnected. United States v. Turner, 2023 U.S. Dist. LEXIS 12453 (W.D. Tex. Jan. 25, 2023).* Defendant in his 2255 doesn’t show ineffective assistance of counsel … Continue reading
Defendant’s post-trial claim that the tracking warrant used to find him expired three weeks before the arrest was waived by not having been filed pretrial. Even if plain error is applied, “we agree with the district court there was no … Continue reading
UNC School of Government: The Law and Practice of No-Knock Search Warrants in North Carolina by Jeffrey B. Welty:
NBC: Men imprisoned for murder say police illegally used Google to find their location data by Jon Schuppe (“Geofence warrants allow police to comb through Google location data in search of suspects. Opponents say that violates the Constitution.”)
E.D.N.Y.: Village’s Scofflaw law permitting seizure of vehicles for nonpayment of parking tickets violates lessor owner’s 4A rights in vehicle
The plaintiff Toyota Lease Trust owns vehicles it leases to individuals. One of plaintiff’s lessees ran up $1000 in unpaid parking tickets and the Village of Freeport seized the vehicle under its Scofflaw law. The seizure violated the owner’s Fourth … Continue reading
The civilly committed for NGBRI verdicts have no Fourth Amendment against cell searches. Lopez v. CEO of Ancora Psychiatric Hosp., 2023 U.S. Dist. LEXIS 12248 (D.N.J. Jan. 24, 2023), citing Glazewski v. Barnett, 2022 WL 2046921, at *3-4 (D.N.J. June … Continue reading