- 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
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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: Administrative search
OH3: Invalid admin SW was saved by GFE
An administrative search warrant issued under the state criminal procedure law was invalid because of limits on who could request and serve a warrant (i.e., law enforcement officers and prosecutors). However, the good faith exception applies to administrative warrants, too. … Continue reading
Cal.4: Without specific argument, court won’t look to SW and affidavit to make it for the appellant
Without specific argument, the court of appeals will not scour the record and the search warrant affidavit to make a party’s argument for him. Billauer v. Escobar-Eck, 2023 Cal. App. LEXIS 144 (4th Dist. Feb. 28, 2023) (anti-SLAPP case; not … 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
N.D.Ill.: PC for admin. warrant became stale before it was sought
This administrative search warrant under OSHA became stale by the government’s delay in seeking it and litigation delays. Also, USMJs have jurisdiction to issue administrative inspection warrants. F.R.C.P. 72 objections do not apply to administrative warrants because they frustrate enforcement … Continue reading
MI: Automobile repair business is pervasively regulated
The trial court erred in suppressing the search of defendant’s automobile repair business which was a pervasively regulated business. The search was during the work week during regular hours and was for evidence of compliance with the Motor Vehicle Service … Continue reading
CA3: Fire scene search for potential spread was exigent
The fire department arrived at a kitchen stove fire in an apartment building that was out. Informed of a sparking stove, fireman suspected there could be a fire in the basement. In the basement they found faulty wiring but no … Continue reading
CA5: 1836 US-Morocco Treaty of Peace and Friendship as applied to courthouse metal detector not “clearly established law”
Plaintiffs are Moorish-Americans who, on the way to file papers with the clerk, refused to go through the metal detector at the Caddo Parish Courthouse. Entrance was denied. They refused to leave and were then arrested for trespass. They sued … Continue reading
techdirt: Investigation: Child Protective Services Agencies Nearly Always Blow Off Warrant Requirements To Enter Homes
techdirt: Investigation: Child Protective Services Agencies Nearly Always Blow Off Warrant Requirements To Enter Homes by Tim Cushing:
CA7: Finality and administrative subpoenas v. administrative SWs
After enforcement of an administrative subpoena, there may be a final order. After an execution of an administrative warrant, however, there usually isn’t because there are processes left with the agency and in court. In re Establishment Inspection of Anthony … Continue reading
ProPublica/NBC News: Police Need Warrants to Search Homes. Child Welfare Agents Almost Never Get One.
ProPublica/NBC News: Police Need Warrants to Search Homes. Child Welfare Agents Almost Never Get One. by Eli Harper (“Each year, child protective services agencies inspect the homes of roughly 3.5 million children, opening refrigerators and closets without a warrant. Only … Continue reading
E.D.Pa.: Searching administratively impounded taxi states 4A claim
Plaintiff states a claim against the Philadelphia Parking Authority for detaining his temporarily impounded taxi for a later search without justification. Mbagwu v. PPA Taxi & Limousine Div., 2022 U.S. Dist. LEXIS 167790 (E.D. Pa. Sep. 16, 2022). A cross-sex … Continue reading
CA11: § 1983 suit that only claimed violations of state law did not state 4A claim
Plaintiff’s § 1983 suit that only claimed violations of state law did not state a Fourth Amendment claim. Lyons v. City of Abbeville, Ala., 2022 U.S. App. LEXIS 24110 (11th Cir. Aug. 26, 2022). Defendant does not get return of … Continue reading
IL: Requirement of some testing of fire sprinkler system doesn’t require a search
A condominium association installed a newer fire protection system, and it was subject to annual testing. The ordinance only required it be tested by somebody, and who would likely be a contractor. It did not compel a search under the … Continue reading
MT: Welfare check of car was reasonable, but extending it was without RS
The officer was justified in a welfare check of defendant sleeping in his car, but it never developed into reasonable suspicion. The stop was unreasonably extended. State v. Zeimer, 2022 MT 96, 2022 Mont. LEXIS 479 (May 24, 2022). A … Continue reading
RI: Commercial fishing is a “closely regulated industry” and a vessel’s monitoring system could be examined
Commercial fishing is a closely regulated industry. “Appellant also had a sea scallop permit, requiring the vessel to have a vessel monitoring system (VMS), which transmits global positioning system (GPS) coordinates every half hour to the National Marine Fisheries Service.” … Continue reading
E.D.Ark.: City’s court order made clean up and removal of ptf’s property reasonable
Plaintiff was told for years to clean up his property from unsightly construction materials and equipment. After many failed efforts to get him to do so, the city obtained a court order to remove the property. It removed nine trailerloads … Continue reading
E.D.La.: Fishing is a heavily regulated industry, and GPS tracking of vessels and reporting of catches is reasonable under Burger
The fishing industry is heavy regulated and has been by Congres since 1793. The government’s requirement of GPS tracking on vessels and reporting of the catch each day for charter fishermen is reasonable and constitutional under Burger v. New York. … Continue reading
OR: Questioning motorist about tattoos unreasonably extended stop
A question to a motorist about tattoos during a stop because they might have been prison tattoos wasn’t shown to be related to officer safety and was thus unreasonable. “Here, the circuitous, propensity-based inquiry about defendant’s incarceration history was predicated … Continue reading
E.D.N.Y.: No REP in pawnshop records uploaded to pawnshop detail
There is no reasonable expectation of privacy in pawnshop records uploaded for the NYPD pawnshop detail. (Therefore, in the trial of this case, attacking the datamining of the NYPD for information is more prejudicial than relevant under F.R.E. 403.) Gem … Continue reading