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- E.D.Cal.: Def’s arrest based on drunkenness was without PC
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- Hell Gate: 83 Percent of ShotSpotter Alerts Might Not Have Been Gunfire at All
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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 (27,400+ on WordPress as of 7/23/24) -
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--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: Plain view, feel, smell
IL: Invited guest in home can refuse contact with police at door without violating law
As an invited guest into the home, defendant had a reasonable expectation of privacy and right to refuse contact with the police at the door without violating the law. People v. Jones, 2024 IL App (1st) 221555, 2024 Ill. App. … Continue reading
E.D.Mo.: A gun seized in plain view can be run to see if it’s stolen
An officer seizing a firearm in plain view off defendant could run it to see if it was stolen. United States v. Reid, 2024 U.S. Dist. LEXIS 130770 (E.D. Mo. June 11, 2024). 2255 petitioner’s IAC claim on Fourth Amendment … Continue reading
CA5: GFE first (was reliance objectively reasonable), PC second
“Warrants are reviewed under a two-part test. In the first step, we determine whether the good-faith exception to the exclusionary rule applies. Under that exception, ‘evidence obtained from [a] search will not be excluded’ even if ‘probable cause for a … Continue reading
W.D.Mo.: Def didn’t show he was driving overdue rented car with anyone’s permission
Defendant had no standing in the rented car he was driving. It was rented by another person, and it had not been timely returned. He didn’t show that he was driving with anyone’s permission. United States v. Manning, 2024 U.S. … Continue reading
IL: Taking the keys to a car can still be only a Terry seizure, not an arrest
Taking the keys to a car can still be only a Terry seizure, not an arrest. Reasonable suspicion not decided below, so remanded. People v. Pellegrino, 2024 IL App (2d) 230343, 2024 Ill. App. LEXIS 1675 (July 18, 2024). Defendant’s … Continue reading
NY2: Stopping car for flashing headlights was properly taken as a possible distress call; but stop was excessive
Defendant’s flashing his high beams at a patrol car was legitimately taken as a likely distress call, but the state failed to prove there was any distress, so the continued questioning was unreasonable. People v. Serrano, 2024 NY Slip Op … Continue reading
MT: RS def was too drunk to drive from description, allegedly crawling to car, then officer talking to him
The citizen informant’s defendant was too drunk to drive because he stumbled and crawled to his car was corroborated by observations and smelling him, so there was at least reasonable suspicion. Defendant’s claim that his bar receipt from inside the … Continue reading
D.P.R.: A cell phone found with drugs had its incriminating nature immediately apparent for plain view
A cell phone found with drugs had its incriminating nature immediately apparent for plain view. United States v. Fernandez-Santos, 2024 U.S. Dist. LEXIS 121462 (D.P.R. July 8, 2024). In an illegal entry case, identification evidence allegedly illegally seized is not … Continue reading
CA2: Failure to object at sentencing to a suspicionless search condition was waiver
Failure to object at sentencing to a suspicionless search condition was waiver. United States v. Nash, 2024 U.S. App. LEXIS 16547 (2d Cir. July 8, 2024). Defendant had a hearing on a motion to suppress that went undecided when he … Continue reading
NE: Return of property denied where post-conviction time hadn’t run
Defendant’s motion for return of property is denied because the time hasn’t run for post-conviction and it still may be needed by the state. State v. Assad, 317 Neb. 20 (July 5, 2024). Defendant did not present a real Franks … Continue reading
W.D.Ky.: Delayed search of a computer was not unreasonable under either 4A or Rule 41(e)(2)(B)
The delayed search of defendant’s computer was not unreasonable under the Fourth Amendment or Rule 41(e)(2)(B) because it wasn’t practical to do so at the scene. United States v. White, 2024 U.S. Dist. LEXIS 117526 (W.D. Ky. July 3, 2024).* … Continue reading
CA5: The fact the officer was in an interstate highway drug interdiction team was unavailing because there was a lawful basis for the stop
“Rocha Nevarez’s argument that the stop was unlawful from the start because the trooper was part of a roving drug interdiction team is unavailing. The state trooper witnessed Rocha Nevarez drift over the fog line on eastbound Interstate 20 on … Continue reading
CA4: Officers with arrest warrant for def could enter yard of property they knew he was visiting to arrest him; plain view sustained
Defendant was a social visitor, not a business visitor, and his standing is more like Olson than Carter. The district court erred in finding no standing. On the merits, however, he loses on a ground fully litigated but not decided … Continue reading
OH2: Home safe could be searched under probation search waiver
The probation search of defendant’s home safe was reasonable under Knights, Griffin, and state law. State v. Apple, 2024-Ohio-2286, 2024 Ohio App. LEXIS 2166 (2d Dist. June 14, 2024). There was reasonable suspicion to stop defendant in a car, and … Continue reading
E.D.Ky.: No PC for SW to test keys in a lock; only RS at most
Keys were found on the passenger seat of a pickup searched parked where a warrant was executed. A separate search warrant was obtained for the keys to determine whether they worked in the house lock. Plain view was argued. But, … Continue reading
E.D.Cal.: The fact mj is legal in CA doesn’t make it so in a national park; plain smell was PC
Defendant’s stop was based on a radio report of an older Lexus driving erratically. When the officer saw the car, the LPN was expired. The stop led to the officer smelling marijuana. The smell was enough to invoke the automobile … Continue reading
E.D.Cal.: Smell of MJ still PC in a California National Park even though not under state law
The smell of marijuana from a car is no longer probable cause under California law, but it is still in a national park. United States v. Tolmosoff, 2024 U.S. Dist. LEXIS 83134 (E.D. Cal. May 7, 2024). Defendant wasn’t seized … Continue reading
Cal.1st: Minor in possession of MJ is PC for search of car
Lawful possession of marijuana in a car is not probable cause for a search. A minor in possession is unlawful, so it is. In re Randy C., 2024 Cal. App. LEXIS 292 (1st Dist. May 3, 2024). There was a … Continue reading
CA9: Apparent drugs found in TSA screening were reasonably seized
The contents of defendant’s suitcase alerted TSA screeners that something was awry. When his suitcase was opened, there were two vacuum sealed bags inside that were obviously drugs – “a layperson would readily ascertain that the packages in Green’s suitcase … Continue reading