- D.Nev.: Affidavits for SWs don’t have to prove the underlying crimes
- D.V.I.: Flyover of curtilage from navigable airspace was reasonable
- NJ: Disputes in the facts on appeal show trial court should have held a hearing
- NY: Second SW for phone a year later after first SW failed to show PC wasn’t timely
- GA: Not objecting to mention of “probation” search at trial was not IAC
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by John Wesley Hall
Criminal Defense Lawyer and
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Little Rock, Arkansas
Contact: forhall @ aol.com / The Book
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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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Category Archives: Common law
CA6: Common law rule that misd must be in presence of officer for warrantless arrest not part of 4A
The common law rule of a misdemeanor offense needing to be in the presence of the officer to be a basis for an arrest is not considered part of the Fourth Amendment. “And our court has held that the offense … Continue reading
CA9: Arrest for misd without having seen it violated state law but not 4A; qualified immunity granted
The requirement that an arrest for a misdemeanor have occurred in the officer’s presence is a statutory rule [I thought common law], but not a Fourth Amendment requirement. Here, the officer still had probable cause, but didn’t see it. Not … Continue reading
E.D.Tenn.: Smell of raw marijuana on def’s clothes supported PC it was in car
The officer testified that he first smelled raw marijuana about a minute into the stop. When he got defendant into the patrol car, he could smell it on defendant’s person. That was probable cause for a search of the car … Continue reading
ABAJ: Chemerinsky: Supreme Court looks to common law for guidance in Fourth Amendment cases
ABAJ: Chemerinsky: Supreme Court looks to common law for guidance in Fourth Amendment cases (“The Supreme Court decided three cases concerning the Fourth Amendment during the October 2020 term. They shared several characteristics.”)
ID: Violation of citizen’s arrest statute not a const’l violation; no suppression
The officer arrested defendant for a completed misdemeanor of stealing a cell phone not occurring in his presence. The manager of the place where it happened wanted defendant arrested. The officer and the manager never informed defendant this was a … Continue reading
N.D.Cal.: Misdemeanor arrest in the home reasonable under 4A and common law
Defendant’s misdemeanor vandalism arrest while officers were inside his house was reasonable under the Fourth Amendment. Common law on misdemeanor arrests applies, too. United States v. Barajas, 2021 U.S. Dist. LEXIS 21651 (N.D. Cal. Feb. 4, 2021). Defendant was convicted … Continue reading
GA retains common law that permits resistance to unlawful arrest
A fascinating recitation of the common law of arrest and the ability to resist an unlawful arrest: As the law existed when the common law was adopted by statute in Georgia in 1776, there was such authority. Most states changed … Continue reading
CA8: Open door doesn’t require knock-and-announce at common law
The officer’s entering through an open door didn’t require knock-and-announce at common law. United States v. Sherrod, 2020 U.S. App. LEXIS 22296 (8th Cir. July 17, 2020):
Law Rev. article: A New Report of Entick v. Carrington (1765)
T. T. Arvind & Christian R. Burset, A New Report of Entick v. Carrington (1765), Notre Dame Legal Studies Paper No. 200131 (2020). Abstract:
CA6: The fact the officer was investigating a misdemeanor that didn’t happen in his presence doesn’t confine the 4A inquiry despite the common law
The Fourth Amendment does not prohibit officers from investigating misdemeanors and making stops based on that, even if the common law prohibits arrests for misdemeanors not committed in the officer’s presence. United States v. Jones, 2020 U.S. App. LEXIS 9038 … Continue reading
New Law Review Article: The Common Law Endures in the Fourth Amendment
New Law Review Article: The Common Law Endures in the Fourth Amendment by George C. Thomas III: Abstract and Introduction:
D.D.C.: There’s a right of public access to old pen register and SCA orders where no ongoing investigation would be compromised
In a 102 page opinion, with the agreement of the USAO, the D.D.C. finds a limited right of access in old sealed pen register orders and SCA orders and unseals those that will not compromise ongoing investigations. There is an … Continue reading
Today is [or maybe] the 414th anniversay of Semayne’s Case and judicial recognition of knock-and-announce and the castle doctrine
Today (as best as can be determined) is the 414th anniversary of Semayne’s Case recognizing both knock-and-announce and the castle doctrine at common law. Back then, the dates of decisions weren’t as important and they appeared in reporters well after … Continue reading
Cato: Protecting the Home from Warrantless Searches: Collins v. Virginia
Cato: Protecting the Home from Warrantless Searches by Jay Schweikert:
Foundation for Economic Education: Who Was the Founding Father of the Fourth Amendment?
Foundation for Economic Education: Who Was the Founding Father of the Fourth Amendment? by Gary M. Galles:
OK: Off-duty out of jurisdiction officer could make a citizen’s arrest
An off-duty police officer was driving from Tulsa where he worked to neighboring Broken Bow in his police car when he was passed by defendant speeding. He didn’t take action until the driving got otherwise erratic, nearly hitting the concrete … Continue reading
CA8: Officer taking custody after citizen’s arrest did not violate clearly established law
An officer received a report of a disorderly misdemeanor in progress and arrived to see part of it. While the facts were conflicting, there was still probable cause for the arrest. The law of citizen’s arrest is not so obvious … Continue reading
ID: Interstate bus driver’s opening backpack was private search even though officer was watching
An interstate bus traveling from Portland OR to Salt Lake City stopped in Boise. The bus driver was moving luggage around to straighten it up for the boarding passengers, and he smelled marijuana coming from a backpack. He called the … Continue reading
PA: SW affidavits not yet revealed to def; investigation could be compromised
Reviewing the affidavits for the three search warrants, the court is convinced that there is still a risk of compromising the investigation, so the search warrants will remain under seal as to the potential defendant. The court recognizes the right … Continue reading
CA11: Writ for body attachment for unpaid child support supports search incident
“This appeal presents a question of first impression about the Fourth Amendment: Can the police arrest someone based solely on a civil writ of bodily attachment for unpaid child support? Ted Phillips appeals his conviction of being a felon in … Continue reading