- 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
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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: Issue preclusion
CA6: Younger requires the federal case over an arrest or search be stayed, not dismissed
The district court improperly dismissed plaintiff’s case under Younger because of ongoing state proceedings it implicated. It should have stayed it instead. Neal El v. Showman, 2023 U.S. App. LEXIS 12604 (6th Cir. May 22, 2023). The Fourth Amendment does … Continue reading
OH10: Odor of MJ from car didn’t justify search of driver’s person
The odor of marijuana coming from a car and not a specific person in the car doesn’t justify search of defendant’s person. State v. Oliver, 2023-Ohio-1550, 2023 Ohio App. LEXIS 1545 (10th Dist. May 9, 2023). Defendant waived his search … Continue reading
W.D.Wash.: Younger abstention bars suit over state prosecution and search
Plaintiff’s federal suit over his state search and prosecution is barred by Younger abstention. There’s no showing he can’t raise those issues in state court. Bailey v. City of Olympia Prosecutor, 2023 U.S. Dist. LEXIS 80175 (W.D. Wash. May 8, … Continue reading
N.D.Tex.: Arrest on NCIC warrant from Michigan reasonable despite it not labeled extraditable
Defendant’s arrest in Texas on a Michigan warrant shown on NCIC was reasonable under the Fourth Amendment despite the claim that it was not flagged for out-of-state extradition. Six months earlier, he was arrested and released before getting to jail … Continue reading
E.D.N.Y.: Even if Brooklyn checkpoint was unreasonable, def’s flight from it was intervening circumstance
NYPD set up a vehicle checkpoint in East Flatbush, Brooklyn, because of heavy traffic and crime in general. Every third vehicle was to be stopped except anything apparently a violation would cause a stop. Defendant was stopped for no front … Continue reading
D.Minn.: Warrant for ion scan of defendant’s door and door frame was issued on PC
Because a drug dog wouldn’t alert to fentanyl, the government showed probable cause on the totality of circumstances for an ion scan of defendant’s apartment door for traces of fentanyl. Warrants for ion scans have been approved in other cases. … Continue reading
MN: Underlying conviction can’t be challenged on 4A grounds
In a driver’s license suspension case, the fact an underlying out of state driving offense was allegedly obtained in violation of the Fourth Amendment is no defense. It was final. Underhill v. Comm’r of Pub. Safety, 2023 Minn. App. LEXIS … Continue reading
D.Haw.: Covid quarantines were not 4A seizures
Hawai’i’s Covid quarantines were not Fourth Amendment seizures to aid government intrusions. For Our Rights v. Ige, 2023 U.S. Dist. LEXIS 66956 (D. Haw. Apr. 17, 2023). Exigent circumstances for warrantless police action is based on an objective standard. United … Continue reading
CA9: Mere typo in SW affidavit doesn’t support Franks challenge
Defendant’s Franks challenge was conclusory and based on mere typographical errors. United States v. Howard, 2023 U.S. App. LEXIS 9069 (9th Cir. Apr. 17, 2023). Habeas petitioner’s admission of procedural default of his Fourth Amendment claim was an admission there … Continue reading
S.D.Ill.: Strategy under Strickland for defense to admit SW affidavit into evidence
It was not unreasonable strategy for the defense to admit at trial the affidavit for his search warrant to challenge the quality of the investigation that the search produced nothing and the informant wasn’t reliable. He was acquitted of one … Continue reading
OH5: Admission of MJ but no MMJ card was PC
Admission there was marijuana in the car and nobody had a MMJ card was probable cause. State v. Hale, 2023-Ohio-1057, 2023 Ohio App. LEXIS 1025 (5th Dist. Mar. 30, 2023). A conclusory allegation that false information in an affidavit for … Continue reading
SC: DL checkpoint was reasonable
Murder case: A highway checkpoint with four officers to check DLs, registration, and insurance was valid under Prouse, Sitz, and Edmund. No suggestion it was for general crime control. State v. Jones, 2023 S.C. LEXIS 61 (Mar. 29, 2023). Defendant … Continue reading
S.D.N.Y.: The exclusionary rule doesn’t apply in § 1983 cases
The exclusionary rule doesn’t apply in § 1983 cases. Villafane v. City of N.Y., 2023 U.S. Dist. LEXIS 52149 (S.D.N.Y. Mar. 27, 2023). There was probable cause for the search warrant for defendant’s DNA. United States v. Burkhalter, 2023 U.S. … Continue reading
D.N.M.: Search warrants are directed at places, not persons; offender need not be mentioned
Search warrants are directed at places, not persons. “Because, at the time of the oral affidavit, there was a fair probability the crime of kidnapping occurred and a fair probability evidence of that crime would be found in Defendant’s home … Continue reading
OH3: Look behind refrigerator during exigent entry was inadvertent plain view
The warrantless entry into defendant’s house was justified by the exigency of a child allegedly in peril, which was not in dispute. While waiting for paperwork to be completed, one officer could see slightly behind the refrigerator and saw packaged … Continue reading
OR: Cell phone SW in part for “evidence related to the crimes under investigation” was overbroad
The search warrant for defendant’s cell phone was specific as to particular images but general as to others, and it is suppressed as to the others. “The fact that the media command limited the media search to ‘evidence related to … Continue reading
D.Md.: Being handcuffed means one could believe he or she is not free to leave
Handcuffing a person is a sure sign they are not free to leave. Here, however, it was justified by defendant’s own actions. United States v. Johnson, 2023 U.S. Dist. LEXIS 22159 (D. Md. Feb. 8, 2023).* A successor habeas doesn’t … Continue reading
ND: Trial court’s finding of investigatory purpose for inventory search supported by record
The district court found that the purported inventory search was really for investigatory purposes, and the evidence supports that conclusion. The inevitable discovery exception also does not apply here. State v. Krall, 2023 ND 8, 2023 N.D. LEXIS 9 (Jan. … Continue reading