- 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
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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: Anticipatory warrant
W.D.Pa.: Anticipatory SW’s triggering condition was package going in house; landlord’s taking it in sufficient
The triggering condition in this anticipatory warrant was the package going inside the home. Here, the landlord took it in, not defendant. Still, under Grubbs, that was sufficient. United States v. Tabor, 2022 U.S. Dist. LEXIS 194653 (W.D. Pa. Oct. … Continue reading
TX finally approves of anticipatory warrants
Texas high court finally approves of anticipatory warrants. Parker v. State, 2022 Tex. Crim. App. LEXIS 470 (July 27, 2022). On his motion for reconsideration, defendant’s Franks challenge still fails. There’s probable cause without the challenged information. “Courts long have … Continue reading
Reason: Cops Are Dressing Up Like FedEx Guys and Arresting People for Drugs
Reason: Cops Are Dressing Up Like FedEx Guys and Arresting People for Drugs (“A little-known agreement allows police officers to seize packages at FedEx sorting centers.”) Actually, the writer was surprised to learn this has been going on for decades. … Continue reading
CA7: Without a triggering condition, this was not an anticipatory warrant
Despite defendant’s argument, this was not an anticipatory search warrant. There was no triggering condition, and it was issued with probable cause. United States v. Calligan, 2021 U.S. App. LEXIS 23402 (7th Cir. Aug. 6, 2021). There clearly was reasonable … Continue reading
M.D.Pa.: Error in USPS tracking number of parcel in SW was a “mere technical error” when it was readily apparent they had right package
Error as to USPS tracking number in an anticipatory warrant wasn’t fatal and didn’t make the warrant not particular. All the other information was correct as to sender, recipient, description, and shipping location. This was a “mere technical error” that … Continue reading
N.D.Ohio: Transporting package in anticipatory warrant from apt complex office to own apt doesn’t give PC for the car
In a controlled delivery case, the package was left at an apartment building office, and then defendant moved it to his apartment by his car. Still, there was no probable cause for search of his car. United States v. Reid, … Continue reading
OH4: Arrest for violation of a statute later held unconstitutional didn’t bar trial under later version of statute
Defendant’s arrest under a statute later held unconstitutional didn’t bar him from being tried under a later version of the statute that was constitutional. State v. Bartholomew, 2020-Ohio-4611, 2020 Ohio App. LEXIS 3465 (4th Dist. Sept. 17, 2020). The fruit … Continue reading
CA6: Def showed no REP in package with a fake name sent to his house
Defendant showed no reasonable expectation of privacy in a package addressed to a fake name at his address. United States v. James, 2020 U.S. App. LEXIS 22766 (6th Cir. July 21, 2020). Defendant failed to show that the challenged statements … Continue reading
OH9: IAC claim defendant pled guilty because of IAC in suppression hearing doesn’t show causal connection
“Mr. Bramos does not allege that his counsel’s statements to the trial court during the suppression hearing had any bearing on his decision to plead no contest more than two weeks later. We, therefore, conclude that Mr. Bramos has failed … Continue reading
M.D.Pa.: The triggering event in an anticipatory SW is subject to broad construction
The triggering event of an anticipatory warrant having occurred, the search warrant could be executed. The triggering event can be broadly construed. United States v. Santana, 2020 U.S. Dist. LEXIS 38086 (M.D. Pa. Mar. 5, 2020). Plaintiff refused to get … Continue reading
WVVA: After crackdown on pill mills, more drugs being seized by mail
WVVA: After crackdown on pill mills, more drugs being seized by mail [this what we’ve all noticed for years]:
D.Mont.: Destruction of a lockbox to search it was not unreasonable
Damaging a lockbox to open it under a search warrant was not unreasonable and doesn’t require suppression of its contents. Destruction of property is sometimes required to execute a search warrant: Dalia v. United States. United States v. Boeke, 2019 … Continue reading
CA8: Package with anticipatory SW was placed back on porch with “return to sender” on it; search still constitutionally sufficient
In this anticipatory warrant case, the package was received, but it was placed back outside with “return to sender” written on it. Still, the warrant was constitutionally sufficient and the officers supplying their own triggering event, one not provided for … Continue reading
S.D.N.Y.: Govt fails its burden of proof to show RS for a stop and frisk based on credibility of the officer; it was a hunch at best
Defendant was seen at 1 am in a high crime area on the street in the Bronx talking with three others. The officer claimed he could see him adjusting his waistband, suggesting a gun. Collectively, the court simply doesn’t believe … Continue reading
E.D.Mo.: PC shown for def’s CSLI at time of murder
The affidavit for search warrant for CSLI for defendant’s phone was issued with probable cause. Defendant’s phone allegedly talked to the murder victim shortly before the murder, and it was reasonable to attempt to determine where the defendant’s phone was … Continue reading
D.Nev.: The fact the officers claimed to smell marijuana but didn’t find any doesn’t mean they were lying
It was testified that the car smelled like burnt marijuana. The fact none was found doesn’t indicate that officers were lying. United States v. Davila, 2019 U.S. Dist. LEXIS 42805 (D. Nev. Jan. 31, 2019),* adopted, 2019 U.S. Dist. LEXIS … Continue reading
D.D.C.: Officers’ testimony about smell of PCP was too equivocal to be reliable
The officers’ testimony about allegedly smelling PCP when they stopped defendant was too equivocal through the hearing to be reliable. A patdown of defendant off that alleged smell produced a gun in his pocket. Defendant’s alleged consent to the patdown … Continue reading
CA6: SW’s flexibility as to when it could be executed didn’t make it an anticipatory warrant with a triggering condition
The search warrant reasonably provided flexibility as to when it would be executed, but it was not an anticipatory warrant at all. United States v. Huntley, 2018 U.S. App. LEXIS 20956 (6th Cir. July 30, 2018):