- 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: Arrest or entry on arrest
CA5: Officer gets QI for shooting into a car under these circumstances
In a case of shooting into a car, “In sum, plaintiffs have not pointed to sufficient authority clearly establishing that Coborn’s conduct violated the law under the specific circumstances he was facing, and thus he is entitled to qualified immunity.” … Continue reading
OK: No GFE* for search under a statute held unconstitutional 18 months before the search
Defendant was stopped and had blood taken after a DUI stop under a statute held unconstitutional 18 months earlier by this court. No good faith exception for a statute still on the books that everyone should have known about. (Defendant … Continue reading
CA3: Arrest without PC doesn’t require dismissal of indictment
If an arrest was without probable cause, evidence derived from the arrest might be suppressible but the indictment would not be quashed. United States v. Rodriguez-Mendez, 2023 U.S. App. LEXIS 11558 (3d Cir. May 11, 2023).* Being unable to read … Continue reading
N.D.Tex.: Arrest on NCIC warrant from Michigan reasonable despite it not labeled extraditable
Defendant’s arrest in Texas on a Michigan warrant shown on NCIC was reasonable under the Fourth Amendment despite the claim that it was not flagged for out-of-state extradition. Six months earlier, he was arrested and released before getting to jail … Continue reading
IL4: Despite legalization of possession of small amounts of MJ, dog alert still PC
The drug dog’s “positive alert on the vehicle in this case established a fair probability that drugs or evidence of a crime would be found in the vehicle. This is true despite recent changes in the law regarding the legalization … Continue reading
OH9: Growing house fire next door was exigency to clear def’s house
Defendant’s next door neighbor’s house caught on fire, and police at the scene acted reasonably in entering his house to clear it when the fire grew and they reasonably feared it would spread to the houses next door. State v. … 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
PA: SW for flashlight app data on cell phone sustained
The affidavits for search warrant for this cell phone were overbroad as to what was sought lacking probable cause except for location data and use of the flashlight function. Defendant was accused of using the flashlight on his cell phone … 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
D.Minn.: Def didn’t show prejudice or unreasonableness from execution of SW before 6 am
Even if the search warrant was executed here before 6 a.m., defendant doesn’t show any prejudice by that. A cell phone is not exigency in itself, but here there was at least some risk of destruction of evidence because defendant … Continue reading
E.D.Mo.: Despite initial deception from officers, cell phone search was by consent
“Even when Sgt. Sublette’s initial deception is considered, the totality of the circumstances amount to voluntary consent by Carron. At the time of the encounter, Carron was a 44-year-old man who appeared to be reasonably intelligent with prior experience in … 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
IL: An investigative alert based on PC justifies a stop and then arrest
An investigative alert based on probable cause justifies a stop and then arrest. People v. Wimberly, 2023 IL App (1st) 220809, 2023 Ill. App. LEXIS 85 (Mar. 23, 2023). The government’s appellate concession the state search warrant was invalid results … Continue reading
OH5: Drone flyover found car hidden in def’s open fields
Defendant owned a vehicle police suspected was involved in an accident, and suspected it was hidden on his somewhat rural property. They used a drone to fly over the property seeing what was likely the car and then got a … Continue reading
E.D.La.: No standing in car with stolen LP and no explanation for why driving it
“The Government, however, also provided evidence that the vehicle is not titled to Duncan and had a stolen license plate, arguing that these facts in conjunction establish that while Duncan possessed the vehicle, there is nothing to suggest he did … Continue reading
IA: Violation of knock-and-announce statute requires suppression
When the target of an arrest warrant opens the door, state statute requires announcement and not just barging in. Here, defendant was compliant and opened the door. The officers needed to announce their purpose. The alleged plain view inside is … Continue reading
IA: With a judicial finding of PC, there’s no immediate right to release on bail without a bail hearing
There was probable cause for arrest involving a magistrate’s issuance of the warrant. Because there is probable cause, there’s no right to immediate release on bond under the state and federal constitutions’ bail provisions. Howsare v. Iowa Dist. Court for … Continue reading
CA6: Allegedly misrepresenting purpose of entry here had no bearing on use of deadly force once inside
Whether the officer lawfully entered the house by misrepresenting his purpose has nothing to do with the objectively justifiable use of deadly force inside. Sawyer v. City of Soddy Daisy, 2023 U.S. App. LEXIS 3108 (6th Cir. Feb. 7, 2023). … Continue reading
CA6: Being a drug dealer is not per se nexus to one’s home; more required
Defendant was a drug dealer, but the affidavit for warrant did nothing to show a reason to believe (nexus) that drugs would be found at his house. No case in this circuit supports nexus on these facts. Moreover, the information … Continue reading
W.D.Ky.: Search warrant affiant’s reference to water emoji wasn’t false or misleading; it here referred to meth, not sex
Defendant’s Franks motion fails. Defendants’ use of a water emoji could have been a reference to sex, but it could also be a reference to methamphetamine, as has come up in police training and in other cases such as United … Continue reading