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- VA: Outline of a gun in def’s pocket was RS
- N.D.Ind.: Motion to suppress was near denial of standing by disavowing relationship with premises
- W.D.N.Y.: Def had no standing in a place he wasn’t allowed to be on parole
- CA11: QI for FBI SWAT raiding wrong house at 3:30 am
- NYLJ: Analysis: Turnabout: Cell Site Location Information for the Defense
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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: Attenuation
OH12: Stop of bicyclist for no light produced arrest warrant; valid under Strieff
Defendant was stopped on his bicycle for no headlight, and that led to finding an arrest warrant for him. Under Strieff, the legality of the stop becomes almost irrelevant to the search incident for the arrest warrant as attenuated. State … Continue reading
CA8: While the stated reason for the stop was maybe legally erroneous, there was a valid unstated alternative basis
Officers stated an improper lane change as their basis for a stop, but it might not have been illegal under Nebraska law. However, they already had reason to believe the registration on the vehicle was lapsed, and that’s a proper … Continue reading
CA3: Nexus shown to def’s home for SW for clothing worn in robbery
When the object of a search is clothing worn during a robbery, there is nexus to defendant’s home. United States v. Ross, 2021 U.S. App. LEXIS 7701 (3d Cir. Mar. 17, 2021). Defendant answered the officer’s knock on the door … Continue reading
NY: Denial of ownership of a key fob found under def at his arrest is abandonment of the car
Defendant could be detained during the search of his house under a warrant. When he got up off the floor, there was a key fob underneath him, and he denied it was his. The officers used the panic button to … Continue reading
CA3: Petition to revoke has to be based on a 4A showing of PC on oath or affirmation, and this was
The petition to revoke was based on probable cause and oath or affirmation and complied with the Fourth Amendment. United States v. Petlock, 2021 U.S. App. LEXIS 3865 (3d Cir. Feb. 11, 2021). Police responded to a suicide in progress … Continue reading
N.D.Cal.: Misdemeanor arrest in the home reasonable under 4A and common law
Defendant’s misdemeanor vandalism arrest while officers were inside his house was reasonable under the Fourth Amendment. Common law on misdemeanor arrests applies, too. United States v. Barajas, 2021 U.S. Dist. LEXIS 21651 (N.D. Cal. Feb. 4, 2021). Defendant was convicted … Continue reading
CA9: The fact CBP had RS doesn’t mean it’s required for a border dog sniff
“The fact that Customs and Border Patrol (CBP) officers had reasonable suspicion cannot serve to heighten the standard attached to the border search.” The use of a drug dog at the border doesn’t require reasonable suspicion. United States v. Meraz-Campos, … Continue reading
Cal.2d: New crime during alleged illegal detention won’t be suppressed
Defendant’s new crime during alleged illegal detention will not be suppressed. Here, he doesn’t even plead enough to get a hearing. People v. Chavez, 2020 Cal. App. LEXIS 858 (2d Dist. Sept. 10, 2020). There was a substantial basis for … Continue reading
N.D.Miss.: In wrongful death action, officer’s subjective intent offered by 404(b) evidence is inadmissible; reasonableness is objective
Because the reasonableness standard is based on objective evidence confronting the officer, the use of 404(b) evidence here would be too extraneous to show subjective intent. “Because reasonableness under the Fourth Amendment is disconnected from an officer’s subjective intent, the … Continue reading
KS: Inquiry to resolve an alleged emergency was reasonable, but extending detention to check warrants was unreasonable even under Strieff
Officers extending a safety check once the person was found to be fine just to see if there were warrants on the person went beyond the basis for the detention and was unreasonable. When the suspected emergency was resolved, the … Continue reading
CA9: Where first meeting violated 4A, second meeting 8 mo later tied to first was not attenuated
By the court: “The panel explained that when a confession results from certain types of Fourth Amendment violations, the government must go beyond proving that the confession was voluntary—it must also show a sufficient break in events to undermine the … Continue reading
MA: Info there might be armed men holding a hostage inside justified entry
“In this case, the police had information that there might be armed men holding a woman in an apartment against her will. In the circumstances presented here, so long as the officers had ‘an objectively reasonable basis to believe’ that … Continue reading
CA2: Lack of any justification for a stop distinguishes Strieff and finding arrest warrant wasn’t attenuated
The police lacked reasonable suspicion to stop defendant because about all they had was he was the same race as their suspect. Finding an outstanding arrest warrant didn’t attenuate the unreasonable stop. The lack of any justification for the stop … Continue reading
OR: Warrantless seizure of house wasn’t shown to taint SW for house
Defendant’s house was seized to get a search warrant. Defendant does not show that the search warrant was tainted by the warrantless seizure. State v. Dehong, 305 Ore. App. 325, 2020 Ore. App. LEXIS 844 (July 8, 2020).* “Here, considering … Continue reading
PA: Police getting SW for CSLI they already had after Carpenter was reasonable
Carpenter was decided three weeks before defendant’s trial. The state then sought a search warrant to supplement its having already obtained the CSLI. Defendant’s motion to suppress on the eve of trial was denied. The search warrant was adequate for … Continue reading
NM: Stop for mere curiosity to run name was unreasonable stop under Strieff
Stopping defendant for mere curiosity to get his name and then run warrants was an unreasonable stop. When a warrant came up, it wasn’t attenuated under Strieff. “Here, Officer Hernandez testified that it was his practice when working the night … Continue reading
SD: Finding arrest warrant here was attenuated from the stop
On the totality, the finding of an arrest warrant curing an allegedly illegal stop favors the state on application of the exclusionary rule under Strieff. “Because the connection between Mousseaux’s detention and the subsequent search incident to her arrest was … Continue reading
OH5: Driver’s pulling MJ from her bra wasn’t RS as to the passenger
The driver producing marijuana from her bra did not create reasonable suspicion as to passenger. State v. Howard, 2020-Ohio-1400, 2020 Ohio App. LEXIS 1364 (5th Dist. Apr. 7, 2020). Since the three search warrants were all issued with probable cause, … Continue reading
OH12: Def was detained without RS and search for arrest on outstanding warrant should have been suppressed
Defendant was detained by three officers and told to wait in her van while one ran her name. The detention lacked reasonable suspicion, and search incident to the arrest for an outstanding warrant was unreasonable and should have been suppressed. … Continue reading