- 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
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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: Automobile exception
CA4: Def gets remand of unexplained warrantless search condition on supervised release
The condition of supervised release that defendant submit to warrantless searches wasn’t explained to him or justified. Remanded. United States v. Davila, 2023 U.S. App. LEXIS 12714 (4th Cir. May 23, 2023). Plaintiff’s driving, observed by an officer and caught … Continue reading
E.D.Pa.: Hospital nurse who found drugs on def wasn’t state actor
A nurse in a hospital who found drugs in defendant’s pants was required by policy to search the rest of his belongings. The nurse was not a state actor. United States v. Kunsman, 2023 U.S. Dist. LEXIS 84362 (E.D. Pa. … Continue reading
MN: Purse in car could be searched under automobile exception
The warrantless search of defendant’s purse was lawful under the automobile exception because there was probable cause to believe that the car contained a controlled substance, and the purse was a container within that car. State v. Barrow, 2023 Minn. … 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
D.Kan.: “The opening of the driver’s door had no effect or impact on the dog’s alert.”
“The opening of the driver’s door had no effect or impact on the dog’s alert.” United States v. Anderson, 2023 U.S. Dist. LEXIS 73033 (D. Kan. Apr. 26, 2023). The facts in the record support the automobile exception as the … Continue reading
NV: A-C privilege reason for return of documents
Attorney-client privilege is reason for return of documents under F.R.Crim.P. 41(g), and Nevada recognizes that, too, regardless of whether there is an open investigation. In re Search Warrants Regarding Seizure of Documents, 2023 Nev. App. Unpub. LEXIS 131 (Apr. 7, … Continue reading
NJ: Analysis of “unforeseeable and spontaneous” PC for application of the NJ automobile exception is case-by-case
Analysis of “unforeseeable and spontaneous” probable cause for application of the automobile exception in New Jersey is case-by-case. State v. Smart, 2023 N.J. LEXIS 208 (Mar. 8, 2023):
OH4: When officer couldn’t find source of strong smell of MJ, he could search again under 4A
The officer encountered a strong smell of marijuana and searched the car for it coming up “empty.” He reviewed the video in the car and searched again. This one continuous effort and separate justification wasn’t needed. Suppression order reversed. State … Continue reading
MA: Crack pipe seen in plain view of passenger compartment justifies search of whole car
“The question presented by this appeal is whether a State trooper’s plain view observation of a used crack pipe in a motor vehicle provides probable cause for a warrantless search of the entire vehicle for contraband drugs. Concluding that it … Continue reading
WI: REP in apt building’s storage room def shared with another that she put the lock on
Defendant had a reasonable expectation of privacy in an apartment’s basement storage room that was shared with another but which defendant put a padlock on. State v. Eder, 2023 Wisc. App. LEXIS 207 (Feb. 28, 2023). There was probable cause … Continue reading
W.D.N.C.: Frisk by security at a bar was purely private search
Defendant was frisked by security entering a bar, and a gun was found. They kept it for the police. This was purely a private search. United States v. Wood, 2023 U.S. Dist. LEXIS 16555 (W.D.N.C. Feb. 1, 2023). The district … Continue reading
D.Haw.: Specific exigency not required for automobile exception search
Defendant’s car could be searched under the automobile exception while it was parked at his mother’s condo. Exigency isn’t specifically required. United States v. Chan, 2023 U.S. Dist. LEXIS 14062 (D. Haw. Jan. 27, 2023).* Even if defendant’s otherwise objectively … Continue reading
CT: Automobile exception still applied even though def was arrested 500′ from car
Defendant was arrested 500′ from his car. The car was still subject to the automobile exception because there was enough connection. He still had the keys on him. State v. Griffin, 2023 Conn. App. LEXIS 8 (Jan. 24, 2023):
OH6: State could get a jury instruction that defendant refused to submit to a DNA search
The state could get a jury instruction that defendant refused to submit to a DNA search. State v. Roberts, 2023-Ohio-142, 2023 Ohio App. LEXIS 131 (6th Dist. Jan. 18, 2023). The facts in isolation may not show reasonable suspicion but … Continue reading
NC: Officer who had knowledge of driver’s medical disqualification from driving could make a stop
“Therefore, a law enforcement officer with either probable cause or reasonable suspicion to believe that the driver of a vehicle is driving with a medically canceled license may conduct a lawful traffic stop of that vehicle without running afoul of … Continue reading
CA5: No suppression for no-knock violation
There is no suppression remedy for an unjustified no-knock warrant. United States v. Bryant, 2023 U.S. App. LEXIS 355 (5th Cir. Jan. 6, 2023). Defendant didn’t enter a conditional plea, so his guilty plea waived his Fourth Amendment claim. United … Continue reading
CA6: Plastic bag on car console wasn’t obviously “dope” to justify automobile exception
The government argued that the search of defendant’s car was justified by the automobile exception because contraband was in plain view. The court disagrees. There was a plastic bag on the console, and the photographic evidence from inside the car … Continue reading
NY3: On parole out of your county and lying about travels RS for parole search
Defendant was on parole and stopped outside his residence county. That was reasonable suspicion for a parole search. Plus, defendant’s multiple and inconsistent explanations about his travels, which the police officers knew were false, coupled with his parole situation and … Continue reading
OH4: Once dog alerts, automobile exception arises, and vehicle can be moved for search
Once a drug dog alerted on defendant’s car, the automobile exception arose, and the search did not have to occur right away. The vehicle could be removed to another location for the search. State v. Harper, 2022-Ohio-4357, 2022 Ohio App. … Continue reading