- 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
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book
online since Feb. 24, 2003 Approx. 350,000 visits (non-robot) since 2012 Approx. 45,000 posts since 2003 (25,700+ on WordPress as of 12/31/22)
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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: Prison and jail searches
CA4: Def gets remand of unexplained warrantless search condition on supervised release
The condition of supervised release that defendant submit to warrantless searches wasn’t explained to him or justified. Remanded. United States v. Davila, 2023 U.S. App. LEXIS 12714 (4th Cir. May 23, 2023). Plaintiff’s driving, observed by an officer and caught … Continue reading
CA6: Officer firing gun at a person he or she doesn’t know fired one, too, is excessive
Officers fired at plaintiff without knowing whether he was the one who fired a gun at them. The sound of racking a bullet into a gun’s chamber in the abstract was not enough. LeFtwich v. Driscoll, 2023 U.S. App. LEXIS … Continue reading
CA3: Rule 41(g) order not appealable when property involved in criminal process
Denial of petitioner’s Rule 41(g) motion for return of property was not appealable when the property is tied up in the criminal process. It is not an exclusionary rule, and it remains available even if the government doesn’t plan on … Continue reading
ID: Drug dog putting feet on car door and window during stiff was a trespass on the chattel and the search should have been suppressed
A warrantless Fourth Amendment “search” occurred when the police drug-sniffing dog trespassed against defendant’s vehicle for the purpose of obtaining information about, or related to, the vehicle. When the dog approached the driver’s side on his second pass, he clearly … Continue reading
S.D.Ind.: 911 response to stabbing call had report of others inside; that was exigency
The officer arrived at plaintiff’s house because of a 911 call about a stabbing. A man who had been stabbed was outside and he said it happened inside and there were others. That justified the officer’s entry into the house. … Continue reading
OH4: When officer couldn’t find source of strong smell of MJ, he could search again under 4A
The officer encountered a strong smell of marijuana and searched the car for it coming up “empty.” He reviewed the video in the car and searched again. This one continuous effort and separate justification wasn’t needed. Suppression order reversed. State … Continue reading
CA5: Mandatory GPS monitoring of charter boats arbitrary under legislation invoked for it
A rule for mandatory GPS monitoring on all charter boats in the Gulf of Mexico, whether used commercially or for personal use at the time, was arbitrarily adopted in violation of the APA. GPS monitoring furthers no government interest under … Continue reading
KY: SW not required for medical question answers at book-in
Defendant had only a limited privacy interest in his medical records from questions asked during the book-in process at jail. Getting his medical information was incident to his detention for his arrest for a fatal collision that killed a police … Continue reading
D.N.J.: Civilly committed for NGBRI verdicts have no 4A rights in their cells
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
D.N.J.: No 6A right to have counsel present at execution of a DNA warrant in the jail
There is no Sixth Amendment right for counsel to be present when a DNA sample is taken from defendant at the jail by warrant. United States v. Hubbard, 2023 U.S. Dist. LEXIS 3661 (D.N.J. Jan. 9, 2023). CBP had reasonable … Continue reading
IL: Officers executing SW lawfully seized gun in plain view
The trial court erred in suppressing evidence. The officers were lawfully on the premises with a warrant when a gun was seen in plain view. People v. Serrato, 2023 IL App (2d) 220100, 2023 Ill. App. LEXIS 3 (Jan. 6, … Continue reading
CA6: Plastic bag on car console wasn’t obviously “dope” to justify automobile exception
The government argued that the search of defendant’s car was justified by the automobile exception because contraband was in plain view. The court disagrees. There was a plastic bag on the console, and the photographic evidence from inside the car … Continue reading
SC Const. search and seizure and privacy provision protects abortion rights; Idaho says theirs doesn’t
The state 1971 constitutional amendment recognizing a right to privacy was really enacting what the people always believed about privacy. It provides: “The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches … Continue reading
D.Minn.: Involuntary civil detainees in a sex offender program have no REP in their rooms
Involuntary civil detainees in a sex offender program have no reasonable expectation of privacy in their rooms. White v. Dayton, 2023 U.S. Dist. LEXIS 71 (D. Minn. Jan. 3, 2023). Habeas petitioner’s claim that a bad photo ID led to … Continue reading
MD: RS is based on an objective test
“[T]he totality of the circumstances assessment to determine the existence of reasonable articulable suspicion is and remains an objective test.” Flight can also be consistent with innocence. Washington v. State, 2022 Md. LEXIS 524 (Dec. 19, 2022). Reasonable suspicion developed … Continue reading
CA6: Violation of Robert’s Rules of Order prior to ptf’s arrest not a constitutional violation
Plaintiff was arrested for disorderly conduct for disrupting a public meeting after repeatedly being told to shut up. His claim that his ejection from the meeting and then the arrest violated Robert’s Rules of Order isn’t a constitutional claim. Burton … Continue reading
E.D.Ark.: Inmate states claim against Sheriff and jail phone provider that privileged attorney calls were turned over to police
Plaintiff Texas inmate was in an Arkansas county jail in 2015-17, and he discovered in 2021 through his current defense lawyer that the county jail phone contractor turned over telephone calls between him and his criminal defense lawyer to the … Continue reading
E.D.N.Y.: A single incident of legal mail being opened in jail doesn’t state a claim
A single incident of legal mail being opened before it got to plaintiff in a county jail doesn’t state a constitutional violation. Braithwaite v. Suffolk Cty. N.Y., 2022 U.S. Dist. LEXIS 204233 (E.D.N.Y. Nov. 9, 2022). There is no reasonable … Continue reading