- 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: Waiver
CA2: Inventory policy here was attached to pleadings and sufficed
The vehicle inventory search was testified to be within ATF policy, which was attached to the pleadings, and it was. United States v. Brack, 2023 U.S. App. LEXIS 12197 (2d Cir. May 18, 2023). Officers observed two people making likely … Continue reading
OH3: Officers had PC without regard to what CI said
The officers had probable cause for defendant’s stop without regard to what the CI said, so failure to corroborate the CI had no effect on the outcome. State v. Harrison, 2023-Ohio-1618 (3d Dist. May 15, 2023).* Defendant’s stipulated plea agreement … 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
D.Minn.: Govt’s failure to raise issue before USMJ was waiver
The government’s failure to raise arguments before the USMJ was waiver when appealed to the USDJ. United States v. Crutchfield, 2023 U.S. Dist. LEXIS 80461 (D. Minn. May 9, 2023). There was probable cause for the search warrant here. It … Continue reading
NC: Arrest warrant for def permitted entry into house when he retreated inside; protective sweep valid
Officers had an arrest warrant for defendant for a violent crime, and he was found at home. They saw him outside, and he retreated inside. The SRT showed up too. The entry for the arrest was valid, as was the … Continue reading
CA4: Slightly outdated information police gathered def lived at place in SW still made it in good faith
Officers gathered information that defendant’s son lived in his house and presented it for a search warrant. After the search they found out he didn’t. The warrant was still issued in good faith. United States v. Jordan, 2023 U.S. App. … Continue reading
AR: Failure to argue against GFE below bars argument on appeal
Failure to challenge application of the good faith exception in the trial court on running the LPN through insurance database precludes challenging it on appeal. Erby v. State, 2023 Ark. App. 220, 2023 Ark. App. LEXIS 211 (April 12, 2023). … Continue reading
NY Nassau: Questions in ER about drug and alcohol use not “pedigree questions”
Questions at the hospital about drug or alcohol use are not “pedigree questions” because they go to the heart of the investigation. People v. Jeffcoat, 2023 NY Slip Op 50306(U), 2023 N.Y. Misc. LEXIS 1549 (Nassau Co. Apr. 7, 2023).* … Continue reading
E.D.N.Y.: Not responding to govt’s 4A response brief amounts to waiver
Not responding to the Fourth Amendment issues in post-hearing briefing was waiver. Defendant loses on the merits anyway. Defendant retrieved sham cocaine (replaced by CBP) in the avionics compartment of an American Airlines plane. He consented to the search of … Continue reading
CA11: Change in strategy doesn’t excuse untimely motion to suppress
With second counsel, defendant filed a second motion to suppress apparently based on new strategy about how to approach one. The different strategy is not “good cause” based on newly discovered facts. United States v. Vazquez, 2023 U.S. App. LEXIS … Continue reading
CA7: Prima facie Franks violation made not disclosing CI’s motives; remanded
Defendant made his prima facie case of a Franks violation, and he was entitled to a hearing. The informants were involved in a love quadrangle not revealed to the warrant issuing judge. Analyzing the affidavit sentence by sentence, the omissions … Continue reading
CA1: Waiver of 4A claim in lower court is waiver for appeal
Defendant explicitly waived his Fourth Amendment claim in the district court, so he can’t appeal it. United States v. Concepcion-Guliam, 2023 U.S. App. LEXIS 5830 (1st Cir. Mar. 10, 2023). Delaware’s loitering statute gives the officer the right to ask … Continue reading
OH8: Not following up on obvious window tint violation didn’t make stop for that unreasonable
The officer reasonably believed the car’s tint violated the law because he literally could not see in it. The fact he didn’t follow up more on that doesn’t make it pretext. State v. McDonald, 2023-Ohio-464, 2023 Ohio App. LEXIS 444 … Continue reading
AR: Search incident to sex offense produced microSD cards that could be seized
Defendant was arrested for a sex offense, and his search incident produced three microSD cards that fell to the ground. They were properly seized and then searched with a warrant finding child porn. Lewis v. State, 2023 Ark. 12, 2023 … Continue reading
E.D.Va.: No 4A right to notice before a search occurs; state search law inapplicable in federal court
Defendant’s Fourth Amendment claim is that he was given no notice that his phones had been searched, citing Virginia law, which is irrelevant in a federal prosecution, even though state officials did all the searching. There’s no constitutional right to … Continue reading
IN: Fundamental (plain) error of S&S claims requires the evidence be fabricated, not just unconstitutionally obtained
The fundamental error avenue to appeal an unobjected to search and seizure claim requires a showing that the evidence was all fabricated, not just that the search was bad. Evidence obtained by search and seizure is usually highly relevant to … Continue reading