- HI: Miranda warnings required whenever PC developes for arrest
- WA: Stop to inquire of paying transit fare violated state constitution
- OH1: Defense counsel ineffective for not challenging state’s alleged consent after they announced “we’re going to be doing a search warrant here”
- CA10: Five seconds is de minimus under Rodriguez
- Reason: An Oregon Man Was Wrongly Imprisoned for Almost a Year Because of an Error in a DMV Database
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by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
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: Burden of pleading
D.C.Cir.: Bivens not extended to immigration detention
Bivens should not be extended to an immigration detention. K.O. v. Sessions, 2022 U.S. App. LEXIS 20984 (D.C. Cir. July 29, 2022). Plaintiff filed a § 1983 case against his prosecution which fails on Younger grounds. As to an illegal … Continue reading
CA7: The question is only whether the officer reasonably believed def violated the law, not whether def did
“‘[T]he question … is whether [the officer] reasonably believed that he saw a traffic violation, not whether [the defendant] actually violated the [law].’ Cole, 21 F.4th at 428.” United States v. Yang, 2022 U.S. App. LEXIS 19125 (7th Cir. July … Continue reading
NY Bronx: REP in one’s apartment building mailbox
Defendant had a reasonable expectation of privacy in his mailbox in an apartment building from unreasonable searches. A search warrant was sought through the Bronx DA, but they were short staffed and recommended the officers get landlord consent. That was … Continue reading
PA: State bears initial burden of showing lack of REP that def must meet
In Pennsylvania, the state has to attempt to show a lack of reasonable expectation of privacy before it can argue a lack of standing. Here, it acquiesced in standing until after it lost the suppression argument, and that’s too late. … Continue reading
D.Minn.: Alleged alibi wasn’t enough for Franks challenge here
Defendant wasn’t entitled to a Franks hearing by attempting to show that he had an alibi for only one controlled buy at issue, which wasn’t quite good enough anyway for probable cause. United States v. Washington, 2022 U.S. Dist. LEXIS … Continue reading
D.Idaho: Broad conclusory motions to suppress should be summarily denied
Broad conclusory motions to suppress should be summarily denied. “The Government and the Court had no warning that Munguia-Lopez was going to challenge his own stop at the hearing. This Court does not look favorably on counsel filing motions with … Continue reading
UT: IAC shown for not challenging dog alert
The initial dog alert here did not provide probable cause for search of defendant’s vehicle. Thus, defense counsel was ineffective for not pursuing a Fourth Amendment challenge. “In summary, based on the record before us, a motion to suppress the … Continue reading
TX: Boilerplate in cell phone SW affidavit not unreasonable, but facts of PC must be shown too
Boilerplate language in a search warrant application for a cell phone isn’t inappropriate, but there must still be a factual showing of probable cause for search of the phone. State v. Baldwin, 2022 Tex. Crim. App. LEXIS 321 (May 11, … Continue reading
IN: State const’l arguments have to be raised in trial court first
Defendant’s argument for a change in standing law under the state constitution that he should have the ability to challenge the search of another person’s person and clothing wasn’t raised below, so it’s waived. State v. Allen, 2022 Ind. App. … Continue reading
AR: SW for evidence linking to a homicide in another county found clothes worn seen in video
In a homicide investigation, officers showed probable cause for defendant’s house for evidence of the murder where the victim was abducted, driven 75 miles, and her body dumped in another county. Defendant was on video surveillance where the abduction occurred, … Continue reading
CA9: Private searcher mimicking her computer search for police was reasonable
Defendant’s former girlfriend found child pornography on his computer. She took the computer to the Reno sheriff’s office, and the police there had her show them what she did and go no farther. This was admitted by the government to … Continue reading
N.D.Ga.: RS still existed on I-85 after apparent hand-to-hand transaction in front of stash house
Defendant’s doing a hand-to-hand transaction from a car in front of a stash house was still reasonable suspicion when the officers caught up with him on I-85 after a license plate reader found the car after they lost sight of … Continue reading
TX4: No REP in totaled car at the wrecker yard
Defendant totaled his car in an accident. The black box evidence was sought by warrant, but the court holds that defendant effectively abandoned the car to the wrecking yard. Vitela v. State, 2022 Tex. App. LEXIS 2759 (Tex. App. – … Continue reading
E.D.Mo.: Empty sandwich bag in car not subject to plain view; incriminating nature not immediately apparent
The government failed to establish reasonable suspicion for defendant’s stop on an anonymous tip where nothing of substance was furnished contrary to Navarette. Moreover, it wasn’t immediately apparent an empty sandwich bag in the car was incriminating for plain view. … Continue reading
NM: Motion to suppress checkpoint stop too general to put state on notice
“We conclude Defendant’s motion was insufficiently particular to alert the metropolitan court or State that the grounds for suppressing evidence related to the checkpoint’s illegality.” “Defendant’s motion, rather, was based upon the State lacking reasonable suspicion to detain Defendant. The … Continue reading
D.C.Cir.: Admin. law: 4A claims must be brought at agency level first
In an action before the Board for Correction of Naval Records, the service member had to raise his Fourth Amendment claim before the agency or it is waived, which is what happened here. McPherson v. Del Toro, Sec’y of the … Continue reading
S.D.N.Y.: Video of def and cell phone at scene of crime is PC for phone
Defendant with his cell phone in hand was at the scene of a shooting as shown by surveillance video. That’s probable cause for the phone. United States v. King, 2022 U.S. Dist. LEXIS 53647 (S.D.N.Y. Mar. 24, 2022). When the … Continue reading
Not being candid about the SW or affidavit in the motion to suppress isn’t good for the defense
“Moreover, even if Defendant is correct that SAPD lacked probable cause to search his vehicle, a motion to suppress is unlikely to succeed. Defendant focuses on one paragraph of the search warrant affidavits and ignores the other four paragraphs detailing … Continue reading
CA4: If you’re going to call the search “egregious,” at least cite a case
“Dr. Dong next asserts, without citation to case law, that ‘[e]gregious procedural deficiencies in the investigation, prosecution, trial and sentencing’ occurred such that his convictions and sentence must be reversed. Opening Br. 18. He first points to alleged deficiencies in … Continue reading
OH3: Where PC exists as to a car, use of a drug dog before the physical search not unreasonable
Once the officer smells marijuana, it violates no law to use a drug dog first rather than just proceeding to search the car. State v. Jones, 2022-Ohio-561, 2022 Ohio App. LEXIS 487 (3d Dist. Feb. 18, 2022). (The less intrusive … Continue reading