- 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: Informant hearsay
CA11: Three CIs with overlapping information corroborated each other
Three informants’ overlapping information corroborated one another such that establishing their veracity was unnecessary. The affidavit in support of the warrant contained enough indicia of probable cause that an officer’s reliance was not unreasonable as it sufficiently linked the residence … Continue reading
CA6: Younger requires the federal case over an arrest or search be stayed, not dismissed
The district court improperly dismissed plaintiff’s case under Younger because of ongoing state proceedings it implicated. It should have stayed it instead. Neal El v. Showman, 2023 U.S. App. LEXIS 12604 (6th Cir. May 22, 2023). The Fourth Amendment does … Continue reading
CA7: Home confinement sentence included a valid search waiver
Defendant was serving a home confinement sentence that included a search waiver. Officers developed reasonable suspicion of another crime and a violation of living conditions. The search was reasonable. United States v. Beechler, 2023 U.S. App. LEXIS 12312 (7th Cir. … Continue reading
W.D.Tex.: State SW doesn’t deprive federal court of jurisdiction
Federal courts had jurisdiction over defendant’s criminal case despite his initial arrest after execution of a state search warrant. Calzada v. United States, 2023 U.S. Dist. LEXIS 86622 (W.D. Tex. Apr. 13, 2023). Disclosure of the CI who provided information … 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
CA8: Child’s statement there was a gun in felon’s house was PC
Defendant’s child saying “my daddy’s has a gun in there” was sufficient for issuing a search warrant for felon in possession. United States v. Watkins, 2023 U.S. App. LEXIS 11303 (8th Cir. May 9, 2023).* Driving with an allegedly purloined … Continue reading
CA3: When relying on social media posts for PC, innocent explanations aren’t required
The warrant affiant adequately corroborated the CIs. When relying on jewelry visible in defendant’s social media posts, it isn’t necessary for the affiant to prove they are real or actually his. For probable cause, innocent explanations don’t have to be … Continue reading
PA: No standing to challenge Google SW for who searched rape victim’s name before crime
In a home invasion rape case, the state sought from Google search information involving the victim’s name in the 48 hours before the rape, and there were searches for that from defendant’s IP address. Defendant had no reasonable expectation of … Continue reading
TX: New crime in resisting illegal arrest doesn’t depend on gravity of the new offense
Appellant resisted an illegal patdown and was Tased and charged with obstruction and resisting. A new offense is an intervening circumstance under Brown, and it doesn’t matter whether it is “serious” or not. Massey v. State, 2023 Tex. Crim. App. … Continue reading
D.Minn.: The affidavit for SW was somewhat conclusory, but the officer’s efforts to corrorobate the CI showed GF
Officers had probable cause for a Facebook tracking warrant to provide information of where he was when he posted about his travels south to acquire fentanyl for sale in Minnesota based on informant hearsay and his two pending drug cases. … Continue reading
D.S.C.: Younger doctrine precludes habeas action against pending state criminal case, here over the search
Petitioner’s 2241 habeas action against an ongoing state prosecution challenging the search is barred by Younger. Johnson v. Warden Marlboro Cty. Det. Ctr., 2023 U.S. Dist. LEXIS 67605 (D.S.C. Apr. 17, 2023). Defendant’s girlfriend accidentally saw child pornography on defendant’s … Continue reading
E.D.Wis.: “Whistleblower” is still a CI whose story must be corroborated
A business fraud “whistleblower”’s statement was too conclusory to show probable cause. Franks hearing granted. United States v. Schampers, 2023 U.S. Dist. LEXIS 68205 (E.D. Wis. Apr. 19, 2023). Defendant was driving back and forth between Plattsburgh NY and Burlington … Continue reading
CA4: CI’s 911 call showing stress of a startling event was reliable
A CI’s 911 call “‘under the stress of excitement caused by a startling event’ (making the call less likely to be preplanned),” was reliable enough for reasonable suspicion. Torres v. Ball, 2023 U.S. App. LEXIS 9076 (4th Cir. Apr. 17, … Continue reading
MI: Trees on undeveloped land were not “effects” for 4A
A city ordinance regulating trees was not a Fourth Amendment seizure because the trees were not on the curtilage of a home and weren’t independently subject to the Fourth Amendment. (Otherwise, a taking occurred, and that’s way outside the scope … Continue reading
DE: Uncorroborated CI doesn’t provide PC
The CI was not sufficiently corroborated, and it thus fails to show probable cause. State v. Mason, 2023 Del. Super. LEXIS 172 (Apr. 6, 2023)*:
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
OH3: Look behind refrigerator during exigent entry was inadvertent plain view
The warrantless entry into defendant’s house was justified by the exigency of a child allegedly in peril, which was not in dispute. While waiting for paperwork to be completed, one officer could see slightly behind the refrigerator and saw packaged … Continue reading
CA7: Def seen on his way to a controlled buy was PC
There was probable cause for the search of defendant’s car stopped on the way to a controlled buy. United States v. Coates, 2023 U.S. App. LEXIS 6108 (7th Cir. Mar. 15, 2023).* Unreasonable responses from defendant stopping at a salvage … Continue reading
D.Me.: CI adequately shown credible enough for PC
There’s no sufficient basis for a hearing on the credibility of the CI because it’s adequately shown he’s credible enough. Moreover, he also doesn’t get a hearing just to cross the CI. United States v. Botello, 2023 U.S. Dist. LEXIS … Continue reading