- 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: Exclusionary rule
D.Colo.: Bank records have no REP so they can be obtained for restitution purposes
There is no reasonable expectation of privacy in bank records, and the government can obtain them to enforce a restitution order. United States v. Osborn, 2023 U.S. Dist. LEXIS 90076 (D. Colo. May 23, 2023). Defendant doesn’t get a Franks … Continue reading
N.D.W.Va.: Checking on warrants of occupants of car reasonably extended the stop
Checking on the outstanding warrants on the occupants of the car reasonably extended the stop. United States v. Hamlet, 2023 U.S. Dist. LEXIS 76568 (N.D. W.Va. May 2, 2023).* Presence of drugs in one’s car doesn’t make probable cause to … Continue reading
N.D.W.Va.: Pulling open def’s pocket to search it was intentional and unreasonable; exclusionary rule applied
Pulling open defendant’s pocket to search it was intentional and required applying the exclusionary rule. United States v. Jenkins, 2023 U.S. Dist. LEXIS 74739 (N.D. W.Va. Apr. 28, 2023). The close relationship between the participants supported probable cause. It was … Continue reading
E.D.Tenn.: Mislabeling SW attachments not worthy of exclusion
Accidental reverse numbering of Attachments A and B didn’t make the search warrant void. United States v. Deakins, 2023 U.S. Dist. LEXIS 60866 (E.D. Tenn. Apr. 6, 2023).* Plaintiff’s claim that the Director of National Intelligence violates the Fourth Amendment … Continue reading
CAAF: Cost of exclusion outweigh benefits, so no exclusion
In a sex assault case, assuming the search of defendant’s cell phone was unreasonable under the Fourth Amendment, the court concludes that the exclusionary rule should not be applied. M.R.E. 311. The error, if there was one, was the commanding … 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.: Possession of a gun in car in Walmart parking lot wasn’t a crime and search for it under community caretaking function unreasonable
Police were called to a Walmart parking lot in Albuquerque because defendant was “unconscious” in his car in his car, and a gun was visible. The seizure of the gun and the interrogation surrounding it can’t be justified under the … Continue reading
ID rejects “reasonable mistake of law” and Heien under state constitution; state’s exclusionary rule is broader
Idaho declines to adopt the “reasonable mistake of law” rule and suppresses a search incident to a warrantless arrest for a completed misdemeanor. The state’s exclusionary rule isn’t just to deter illegal police misconduct – it is considerably more, and … Continue reading
CA2: No REP shown in porch shared with neighbor
Defendant shared a porch with his neighbor and made no effort to show a reasonable expectation of privacy in it. United States v. Lewis, 2023 U.S. App. LEXIS 6689 (2d Cir. Mar. 21, 2023).* The exclusionary rule doesn’t apply in … Continue reading
KS: Excessive force in unnecessary stop by PIT maneuver led to death of passenger which is suppressed
Defendant refused to stop for a broken windshield infraction, and he fled. The officer PITted his car, and the passenger died. Defendant was charged with murder for the passenger’s death. The trial court held that the seizure resulting in the … Continue reading
CA: Unreasonable stop and running warrants revealed def was on parole; suspicionless parole search unreasonable
A man on the street was stopped by police for no apparent reason. A records check revealed he was on parole with a warrantless search waiver on file. The warrantless search of his person was unreasonable, and the exclusionary rule … Continue reading
NE: Failure to deliver SW to def not 4A violation and doesn’t warrant suppression
Defendant was the subject of a search warrant for a blood draw. The fact he wasn’t given a copy of the warrant doesn’t require reversal. He clearly knew what was going on. State v. Svendgard, 31 Neb. App. 596, 2023 … Continue reading
KY: 21-month delay for SW for cell phone not unreasonable where def in custody
Officers had probable cause and nexus and showed particularity to defendant’s cell phone. He’d previously been accused of recording undressed women and was involved in an upskirting. Here he’d been accused of sex with drugged women and recording some of … Continue reading
S.D.Miss.: Even suppressed drugs can be figured into drug weight for sentencing
Even if a motion to suppress had been pursued and defendant prevailed, suppressed drug weight can be used at sentencing. United States v. Coleman, 2023 U.S. Dist. LEXIS 10826 (S.D. Miss. Jan. 23, 2023). Pro se plaintiffs fail to state … Continue reading
AR: Claim state’s response to motion to suppress was judicial admission has to be presented to trial court
To argue that the state’s admissions in a response to a motion to suppress amount to a judicial admission of fact, the issue has to be argued to the trial court to preserve it. Otherwise, the trial court is free … Continue reading
CA6: Erroneous LEO database info still justified stop
Officers had information from the state DL and LPN database that defendant’s car had no insurance. That justified the stop even if it turned out to be erroneous. United States v. Conley, 2023 U.S. App. LEXIS 856 (6th Cir. Jan. … 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
OR: Computer hard drive with contraband could be destroyed with guilty plea
By defendant’s plea to a sex and child porn offense, the state could destroy the computer hard drives where the contraband was found. The seizure was in 2003, and the trial was 2017. State v. Forker, 323 Or. App. 323 … Continue reading