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- LA4: Merely having a concealed firearm isn’t RS for a frisk
- OR: Merely driving off the road wasn’t RS, but adding the driver’s demeanor at the time was
- OH6: Trial court’s failure to explain RS under Rodriguez required remand
- CA6: Asking def before a patdown during arrest what he had on him wasn’t barred by Miranda
- NY Queens: PC shown for SW blood drawn at hospital after car wreck
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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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"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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Monthly Archives: October 2019
Reason: Reasonable Suspicion From Driver to Car: A Few Thoughts on Kansas v. Glover
Reason: Reasonable Suspicion From Driver to Car: A Few Thoughts on Kansas v. Glover by Orin S. Kerr Some interesting issues raised by the only Fourth Amendment case currently on the Supreme Court’s docket.
Lexology: Courts continue to consider intersection of Fourth Amendment and technology: without a warrant, retrieval of car’s electronic data unconstitutional, but surveillance on hunting property permissible
Lexology: Courts continue to consider intersection of Fourth Amendment and technology: without a warrant, retrieval of car’s electronic data unconstitutional, but surveillance on hunting property permissible by Brian J. Willett
VA: Def’s refusal to submit to a SW for DNA could be argued as consciousness of guilt at trial
Defendant’s conscious refusal to submit to a DNA buccal swab sought by a search warrant could be argued as consciousness of guilt. Haas v. Commonwealth, 2019 Va. App. LEXIS 237 (Oct. 29. 2019). The officer’s knowledge from nearly six months … Continue reading
AZ: Protective sweep that produced a bullet casing was unjustified (but harmless)
Defendant has standing to challenge the search of a mobile home he had rented even though he had not fully moved in, and the trial court erred in concluding otherwise. The state’s argument the entry into the mobile home required … Continue reading
E.D.Mich.: Def’s furtive movement justified extending the stop
Defendant’s reaching out of sight during a traffic stop was a furtive movement justifying extending the stop and seeing what he was doing. United States v. Edwards, 2019 U.S. Dist. LEXIS 185987 (E.D. Mich. Oct. 28, 2019).* The protective sweep … Continue reading
S.D.Ill.: The delay in the stop was def’s own stalling
The stop was prolonged but it was defendant’s own stalling, so Rodriguez wasn’t violated. “The fact that Thompson and Dwyer did not issue any ticket for the window tinting or the obstructed brake lights is not relevant to the question … Continue reading
techdirt: Cops: People In Their Own Homes Are In The Wrong Place At The Wrong Time Whenever A Cop Enters Unlawfully
techdirt: Cops: People In Their Own Homes Are In The Wrong Place At The Wrong Time Whenever A Cop Enters Unlawfully by Tim Cushing:
CO: Vehicle inventory fails where no showing of policy enabling it
The inventory of defendant’s car was not done according to any policy, and it is not justifiable under the automobile exception or as a protective search for weapons either. People v. Allen, 2019 CO 88, 2019 Colo. LEXIS 1077 (Oct. … Continue reading
CA10: When the police destroy your house in aid of the police power because of a barricaded suspect, it’s not a taking under the 5A
When the police destroy your house in aid of the police power because of a barricaded suspect, it’s not a taking under the Fifth Amendment. [The Fourth Amendment is not cited.] Lech v. Jackson, 2019 U.S. App. LEXIS 32393 (10th … Continue reading
SCOTUSblog: Argument preview: Can the police stop a vehicle because its registered owner’s license has been suspended or revoked?
SCOTUSblog: Argument preview: Can the police stop a vehicle because its registered owner’s license has been suspended or revoked? by Evan Lee (“Next Monday, November 4, the Supreme Court will hear argument in a case that asks whether it is … Continue reading
ABAJ: Genealogy sites give law enforcement a new DNA sleuthing tool, but the battle over privacy looms
ABAJ: Genealogy sites give law enforcement a new DNA sleuthing tool, but the battle over privacy looms by Jason Tashea with the story of an exoneration by reverse engineering DNA from genealogy sites to find the real killer who confessed … Continue reading
MA: Obtaining and executing arrest warrant in middle of night for a rash of burglaries was reasonable
Police were investigating a rash of burglaries, and woke up a magistrate in the middle of the night to get an arrest warrant for defendant. Officers went to arrest him and others were seeking a search warrant. At his apartment, … Continue reading
CA9: Arresting ptf for objecting to police coming into her house while she got money to pay a cab driver stated 4A claim with no QI
“Can a declined credit card for a $16.70 cab fare result in a 42 U.S.C. § 1983 action? One would think not. But here we are.” The cab driver called the police. Plaintiff offered to go into her apartment to … Continue reading
D.P.R.: Def’s avowed lack of connection to the borrowed car he had was a lack of REP
Defendant’s avowed lack of connection to the car he borrowed and was driving was a lack of a reasonable expectation of privacy. United States v. Villa-Guillén, 2019 U.S. Dist. LEXIS 185672 (D.P.R. Oct. 25, 2019)*:
IL: Def’s leaving house to deliver to a controlled buy was nexus for house
There was nexus for the search warrant for defendant’s house where he was alleged to have left his house and driven directly to the scene of a controlled buy where he was delivering. People v. Teague, 2019 IL App (3d) … Continue reading
CA3: Body cavity search for baggie of drugs was reasonable because of exigency of risk of overdose
Plaintiff’s body cavity search for a baggie of drugs in her vagina was reasonable by exigent circumstances because of a legitimate fear that she could be harmed and overdose if the bag leaked. Carbone v. Salem, 2019 U.S. App. LEXIS … Continue reading
CA4: Probation search not unreasonable because a law enforcement task force was involved
Defendant argues the state probation search agreement (“his probation officer”) rather than the statute’s provision that he was generally subject to search was not controlling. The court disagrees: The statute controls and it’s clear. The fact a law enforcement task … Continue reading
GA: Police approaching back door of apartment violated curtilage
Officers investigating stolen property found the thieves who said they traded the property to defendant for drugs. They went to his apartment in a quadplex to talk to him. Getting no answer at the front door, they walked on the … Continue reading
N.D.Ohio & S.D.Miss.: SW including “any vehicle on the premises” is still particular
A search warrant that authorized the search of “any vehicle on the premises” was not unparticular because it allowed searches of visitor’s cars too. Plenty of cases already hold that “any vehicle on the premises” is particular. Moreover, there was … Continue reading
CA2: Not clearly established for QI that a warrantless body cavity search required exigency and a particularized suspicion
A police officer was entitled to qualified immunity because the right to be free from a warrantless manual body cavity search in the absence of exigent circumstances and a particularized suspicion that evidence of a crime was secreted inside the … Continue reading