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- D.N.M.: DEA’s failure to make a detailed inventory in violation of policy doesn’t require exclusion of evidence
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- AR: RS def rented a hotel room was sufficient for search waiver; PC not required
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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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Fourth Amendment cases,
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Congressional Research Service:
--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: Emergency / exigency
MO: Objection for “lack of foundation and improper procedure” not a 4A challenge
An objection to a BAC test for lack of foundation and improper procedure does not preserve a Fourth Amendment challenge. Petersen v. State, 2022 Mo. LEXIS 226 (Nov. 22, 2022). The officers made a valid plain view to damage to … Continue reading
CA6: Seeing person named in arrest warrant at place she was staying satisfied Payton
Officers had sufficient information under Payton that a woman for whom they had a warrant was on the premises she was supposedly living at when they entered. They’d seen her there, and CIs put her there. United States v. Essex, … Continue reading
AL: When def was being taken to ER for chest pains, looking in pocket of jacket he wanted to take and a pill bottle inside was reasonable
Complaining of chest pains, defendant called 911. Attached to his address was a “safety alert” that police should show up for the safety of EMTs and firemen. As he was being transported to the hospital, he asked for his coat … Continue reading
D.S.C.: No exigency 6 hours after 911 call
Police showed up at defendant’s house six hours after a 911 call. Whatever exigency there might have been had dissipated. Everyone in the house was asleep. United States v. Miller, 2022 U.S. Dist. LEXIS 189981 (D.S.C. Oct. 17, 2022). The … Continue reading
M.D.Pa.: 14 yo kidnapping victim’s 911 call created exigency for def’s cell phone seizure
A 14-year-old kidnapping victim called 911 that she was taken three days earlier, and defendant was finally detained as a result. His phone was seized and a warrant obtained. The seizure of the warrant was reasonable based on all the … Continue reading
OH8: No PC for hot pursuit into house on less than RS
The state showed no probable cause to justify a warrantless entry into the home of a fleeing misdemeanant. Police got a citizen’s report of a possible impaired driver. When they found the car, it had just pulled into the driveway … Continue reading
D.V.I.: 911 call from a child was exigency to go to the back door too
A 911 call from a child on the premises was exigency for going to the door. When the door was open, the police could see through to the backyard that there were marijuana plants growing there. The initial exigency, however, … Continue reading
D.N.J.: Holding a vehicle 4 days before searching it was not unreasonable
“While law enforcement held the Durango for four days after the seizure before searching it pursuant to a warrant, this delay did not render the continuing seizure of the Durango unreasonable. See Donahue, 764 F.3d at 300-01 (collecting cases and … Continue reading
N.D.Cal.: Prolonging traffic stop to inquire of probation or parole status unreasonable
Prolonging the traffic stop for further information on defendant’s parole and probation status was unreasonable. It diverted from the traffic stop. United States v. Gould, 2022 U.S. Dist. LEXIS 142915 (N.D. Cal. Aug. 10, 2022). The protective sweep of defendant’s … Continue reading
NY2: Search of wallet during a frisk unreasonable
Officers violated the Fourth Amendment during defendant’s frisk when they removed his wallet from his pocket and searched it. People v. Lewis, 2022 NY Slip Op 04920, 2022 N.Y. App. Div. LEXIS 4797 (2d Dept. Aug. 10, 2022). The officer … Continue reading
D.Minn.: Police delay in responding to 911 call in part belied exigency
There no longer was exigency, in part here from the police delay in responding to 911 call, and what was observed was innocuous. No exigency on the totality. Cotten v. Miller, 2022 U.S. Dist. LEXIS 139360 (D. Minn. Aug. 5, … Continue reading
CT: Def’s missing father was exigency for warrantless entry
The entry into defendant’s house was justified by the emergency exception because his father had been missing for days. State v. Samuolis, 2022 Conn. LEXIS 213 (Aug. 9, 2022). As to probable cause, “The district court found the affidavits constitutionally … Continue reading
NE: State showed exigency for warrantless blood draw
Driver’s going in and out of consciousness at the scene of a wreck was probable cause for a blood draw. Medical treatment at ER would interfere with it. “This case presents a textbook case of exigent circumstances under Mitchell.” State … Continue reading
D.N.M.: SW for computer files created in a one week period was particular
The warrant here was for computer files created in a one week period. That was particular. United States v. Riego, 2022 U.S. Dist. LEXIS 130233 (D.N.M. July 22, 2022). The district court’s findings of fact support the finding of exigent … Continue reading
CA6: Sex offender’s being around children justified parole search of house
A report that a sex offender had been around children is reasonable suspicion for a parole search of his house. United States v. Sharp, 2022 U.S. App. LEXIS 20291 (6th Cir. July 22, 2022). “Davis contends that the search was … Continue reading
OH7: Attached affidavit made SW particular
While the search warrant wasn’t particular, it incorporated the affidavit which was. State v. Bugno, 2022-Ohio-2008, 2022 Ohio App. LEXIS 1882 (7th Dist. June 9, 2022). The emergency aid exception applies: “[T]he presence of blood on the premises, coupled with … Continue reading
D.N.M.: Emergency justification for real time CSLI dissipated and leads to suppression
Capture of defendant’s real-time CSLI was a search under Carpenter, but the government showed that officers had an emergency justification for getting it at first, but that dissipated. Finally, the good faith exception does not apply here. United States v. … Continue reading