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- W.D.Ark.: Parole search waiver moots lack of PC argument
- AR: RS shown for boating while intoxicated stop
- W.D.Mo.: Wrong address in SW wasn’t fatal where right house was searched
- NY: Failure to show independent source for officer’s observation of def required reversal
- VA: Outline of a gun in def’s pocket was RS
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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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--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: Inevitable discovery
DC: “Handcuffing is ordinarily improper in a Terry stop absent an objective safety concern.”
“Handcuffing is ordinarily improper in a Terry stop absent an objective safety concern. See United States v. Smith, 373 F. Supp. 3d 223, 241 (D.D.C. 2019); Haynes v. Minnehan, 14 F.4th 830, 835 n.4 (8th Cir. 2021) (‘[A]bsent an objective … Continue reading
Cal.2: MJ smell associated with minors still RS for an offense
Officers ran an LPN and saw that the vehicle had expired tags. Driving next to the car, officers smelled burnt marijuana and knew that the users were minors which is still an offense under California law. That was cause for … Continue reading
OH: Opening car door was to secure uncooperative def, not search; plain view valid
Opening the car door was not for the purpose of searching; it was to secure the uncooperative defendant. During the interaction, evidence in plain view was seen and the officer then could enter the car to secure it. State v. … Continue reading
OR: Holding def’s ID for 30 minutes for no apparent reason was a seizure without RS
Retaining defendant’s ID for 30 minutes before even thinking about questioning his identity was a seizure without reasonable suspicion. State v. Orman, 322 Or. App. 707, 2022 Ore. App. LEXIS 1479 (Nov. 16, 2022). Defendant was not seized when he … Continue reading
NC: Dog sniff of package in mail stream reasonable
A dog sniff of a package in the mail stream is reasonable. There is no reasonable expectation of privacy from a dog sniff there. State v. Teague, 2022-NCCOA-600, 2022 N.C. App. LEXIS 748 (Nov. 1, 2022). Defendants’ motion in limine … Continue reading
CA1: Voluntary act after unreasonable stop made evidence admissible
There was no reasonable suspicion for defendant’s seizure on the totality. But, “Sierra-Ayala’s intervening volitional act, in the absence of exploitative behavior by López-Maysonet, renders the discovery of the drugs sufficiently attenuated so as to dissipate the taint of the … Continue reading
E.D.Ark.: Def’s statements disassociating himself from the premises searched showed no standing
Defendant had some connection to the premises, but his disassociation from the premises when asked about it by the police showed his lack of standing. “To resolve his motion to suppress, however, the Court need not determine whether these possessory … Continue reading
CA8: Shoplifting arrest supported search incident of backpack; inevitable anyway
The search of defendant’s backpack incident to a shoplifting arrest produced a firearm. Even if the search incident wasn’t proper, it was inevitable the backpack would be inventoried at the jail.United States v. Trogdon, 2022 U.S. App. LEXIS 15860 (8th … Continue reading
E.D.Mo.: Empty sandwich bag in car not subject to plain view; incriminating nature not immediately apparent
The government failed to establish reasonable suspicion for defendant’s stop on an anonymous tip where nothing of substance was furnished contrary to Navarette. Moreover, it wasn’t immediately apparent an empty sandwich bag in the car was incriminating for plain view. … Continue reading
E.D.Wis.: Inevitable discovery cures otherwise unreasonable inventory
“The search here was generally unreasonable, but it was saved by inevitable discovery. “In the present case, the Government does not contend that Hobbs had probable cause to search Defendant’s vehicle. Hobbs did not have a warrant. His search was … Continue reading
D.Nev.: Traffic stop devolving into investigation of violation of parole conditions was without RS
“The Court finds that Chronister unlawfully prolonged the traffic stop by pursuing an investigation into whether or not Lewis was in violation of his parole conditions.” “The Court finds that Chronister did not believe at the time of the traffic … Continue reading
MA: State law requires PC for pole camera surveillance, and officers had it
Pole camera surveillance in Massachusetts requires probable cause to set it up. Officers had it in defendant’s case, and his front door and left side of his house were watched for 15 days. Commonwealth v. Comenzo, 2022 Mass. LEXIS 54 … Continue reading
CA6 explains inevitable discovery and how it was confused here with attenuation
The district court erred by analyzing the search as attenuation when it should have been inevitable discovery, and that’s on the lawyers for not having filed adequate briefs. The court gives a thorough and helpful explanation of both and how … Continue reading
NY1: Routine of leaving out of affidavit for SW that protective sweep saw drugs first revealed during trial required hearing
During the trial, NYPD officers revealed they were in the premises and conducted plain views during a walk around as a protective sweep and then sought a search warrant . It was also revealed that they routinely left information about … Continue reading
AL: When DEA adopts a seizure for forfeiture, state courts lose jurisdiction to return property
When there’s a seizure for forfeiture and the DEA adopts it, the state court loses jurisdiction to return it. Hare v. Mack, 2022 Ala. LEXIS 8 (Jan. 21, 2022). Police responded to a shots fired call at an apartment where … Continue reading
S.D.Tex.: No 5A protection on phone pass code, and inevitable discovery applies
The foregone conclusion rationale for access to passcodes for cell phones. There was no Fifth Amendment privilege to providing the passcodes. Inevitable discovery applies. United States v. Zhengdong Cheng, 2022 U.S. Dist. LEXIS 6437 (S.D.Tex. Jan. 12, 2022):
MA: A computer check during a traffic stop would dispel any RS, and failure to do so was unreasonable
Defendant’s car had an inspection rejection sticker for safety defects, but state law grants a 60 day grace period for correction. A computer check would have answered any questions. “Accordingly, we conclude that whether the troopers’ suspicion was reasonable in … Continue reading
MT: When def asserts right to a SW on curtilage, deputy should have left if no exigency
When a sheriff’s deputy came on the curtilage to talk to defendant, defendant asserted his right to a warrant and refused to talk to him. While there were no No Trespassing signs, defendant’s assertion was enough to manifest his reasonable … Continue reading
TX1: Commercial truck driver had standing to challenge seizure of cell phone from truck after his arrest
Defendant retained a reasonable expectation of privacy in his cell phone that was left in the semi he was driving for a commercial carrier when he was arrested. The owner of the truck retrieved the phone and sent it to … Continue reading