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- W.D.Ark.: Parole search waiver moots lack of PC argument
- AR: RS shown for boating while intoxicated stop
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- NY: Failure to show independent source for officer’s observation of def required reversal
- VA: Outline of a gun in def’s pocket was RS
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ABA Journal Web 100, Best Law Blogs (2017); ABA Journal Blawg 100 (2015-16) (discontinued 2018)
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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
www.johnwesleyhall.com -
© 2003-24,
online since Feb. 24, 2003 Approx. 425,000 visits (non-robot) since 2012 Approx. 45,000 posts since 2003 (26,730+ on WordPress as of 12/31/23) -
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--Electronic Communications Privacy Act (2012)
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"If it was easy, everybody would be doing it. It isn't, and they don't."
—Me -
"Life is not a matter of holding good cards, but of playing a poor hand well."
–Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others) -
“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!”
---Pepé Le Pew "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."
—Johnson v. United States, 333 U.S. 10, 13-14 (1948)
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Category Archives: Waiver
VA: Outline of a gun in def’s pocket was RS
The outline of a gun in defendant’s pocket was reasonable suspicion. Alvin v. Commonwealth, 2024 Va. App. LEXIS 230 (Apr. 23, 2024). Even if a prior search was unreasonable, there was an independent source for the warranted search of defendant’s … Continue reading
W.D.N.Y.: Def had no standing in a place he wasn’t allowed to be on parole
As a parolee, defendant didn’t show standing in his girlfriend’s apartment when he wasn’t supposed to even be there in violation of parole. United States v. Melvin, 2024 U.S. Dist. LEXIS 73044 (W.D.N.Y. Apr. 22, 2024). The officer showed probable … Continue reading
M.D.Ala.: The validity of the appointment of a special judge for 180 days does not matter under the good faith exception
A specially appointed circuit judge for 180 days signed a search warrant during his tenure. The legality of the appointment doesn’t matter because the good faith exception applies to execution of the warrant. United States v. Broaden, 2024 U.S. Dist. … Continue reading
DC: A backpack left in a house and to be retrieved wasn’t abandoned
Defendant did not abandon his backpack that he left in the house he had a connection to. He intended to come back and get it. His reasonable expectation of privacy was objectively reasonable. United States v. Pope, 2024 D.C. App. … Continue reading
NY Queens: PC shown for SW blood drawn at hospital after car wreck
Probable cause was shown for the search warrant for defendant’s blood drawn at a hospital after a car wreck. To the extent there is also a Franks challenge, it fails. People v. Moreno, 2024 NY Slip Op 24116, 2024 NYLJ … Continue reading
WA: No immediate bail for DV arrest violates neither 4A nor due process
A no bail arrest for domestic violence until the first appearance violates neither the Fourth Amendment nor due process. State v. Clare, 2024 Wash. App. LEXIS 462 (Mar. 12, 2024). CoA denied. Petitioner doesn’t show that his state Fourth Amendment … Continue reading
WA: Failure to argue the state constitution to the trial court waived reliance on it on appeal
Failure to argue the state constitution to the trial court waived reliance on it on appeal. State v. Troutman, 2024 Wash. App. LEXIS 672 (Apr. 8, 2024). There was reasonable suspicion for lengthening this detention from the fact the LPN … Continue reading
Three on post-conviction and defaulted 4A claims
“Defendant has procedurally defaulted on this claim by never filing a motion to suppress the evidence, but instead pleading guilty. Moreover, a Fourth Amendment claim such as this one is not cognizable on a § 2255 motion. Stone v. Powell, … Continue reading
E.D.Pa.: Nexus can be shown by inference
There was probable cause as to defendant’s house, with nexus a strong inference: “Here, the officers, applying their training and experience to the facts before them, reasonably inferred that Mitchell was a drug dealer and was carrying drugs and other … Continue reading
D.Minn.: Hidden compartment could be searched under automobile exception
Under the automobile exception, a search of a compartment underneath the dashboard paneling was reasonable. United States v. Payton, 2024 U.S. Dist. LEXIS 57065 (D. Minn. Mar. 29, 2024).* The search issues on appeal weren’t the issues in the trial … Continue reading
E.D.N.Y.: Seizure of def’s cell phone in South Africa by their police does not “shock the conscience” or show virtual agency
“The court must first begin with a discussion of the initial seizure of Chang’s cellphone by South African authorities on December 29, 2018. Under the ‘international silver platter doctrine,’ the U.S. can generally receive evidence obtained by foreign authorities with … Continue reading
CA9: Supervised release condition of financial disclosure permitted under 18 U.S.C. § 3553(a) and didn’t violate 4A
“Second, the financial disclosure condition does not clearly violate the Fourth Amendment’s requirement that release conditions be reasonably necessary and narrowly tailored. See United States v. Sales, 476 F.3d 732, 737 (9th Cir. 2007). We have upheld a substantially similar … Continue reading
N.D.N.Y.: Strip search of transgender woman going into jail who might bond out was reasonable
Strip search of a transgender woman going into custody was reasonable, even though she’d likely bail out soon. “Applying Florence to this case, the Court finds that JCCF’s policy is consistent with the Fourth Amendment. Although JCCF’s institutional safety concerns … Continue reading
D.P.R.: Alleged false GJ testimony as an alleged 4A violation rejected as new Bivens ground
“Plaintiff grounds his Bivens cause of action in an allegation that Garay, a CBP officer, violated his Fourth Amendment rights by procuring his indictment based on supposedly intentional false testimony in which Garay stated that Plaintiff knowingly possessed and transported … Continue reading
Cal.2d: Questions posed during a traffic stop while waiting for the records check to come back do not extend the stop
Questions posed during a traffic stop while waiting for the records check to come back do not extend the stop. People v. Felix, 2024 Cal. App. LEXIS 154 (2d Dist. Mar. 7, 2024). Defendant’s bad search claim as part of … Continue reading
N.D.Ga.: Assuming without deciding standing to challenge a college email account, there was PC for the email warrant
Defendant sent threatening emails through his Georgia Tech account. He also sent private emails with tax and property information. He raised a Franks challenge, too. Assuming without deciding he has standing to challenge the email search, there was probable cause … Continue reading
S.D.Cal.: Challenge to PC for revo warrant has to be made in the district where the warrant comes from
Challenge to the probable cause for a revocation warrant has to be made in the district issuing it, not this one where defendant currently resides. United States v. Carranza-Cruz, 2024 U.S. Dist. LEXIS 31590 (S.D. Cal. Feb. 23, 2024).* The … Continue reading
CA4: Ptf, a contract jail nurse, states a claim for being strip searched when mistaken for inmate [in scrubs]
Plaintiff is a nurse, and, for her first day on the job at this jail, she was accidentally strip searched when she was mistaken for a weekender. She stated a claim for relief that survives summary judgment and qualified immunity. … Continue reading
E.D.Ky.: Motion for new trial here not ground for illegal search claim
This motion for new trial is not for defendant’s claim that officers hacked his computer to illegally search it. It’s not newly discovered. Moreover, there were questions of the FBI computer analyst about whether the computer had been hacked. United … Continue reading
D.Utah: Facebook account SW was properly limited to time and to crime under investigation and not overbroad
This Facebook account warrant was properly limited. “First, both warrants here were limited to a time period of about one year, from December 11, 2020, to November 17, 2021. As a result, neither warrant allowed the government to search everything … Continue reading