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- E.D.N.Y.: The search of def’s house started about 6:10 am; the camera time hadn’t been adjusted for DST
- WA: Failure to argue the state constitution to the trial court waived reliance on it on appeal
- CA9: QI for punching a resisting arrestee
- CA9: Officer stopping to check on an already stopped motorcycle wasn’t a seizure
- CA7: Warranted strip search in a private secure setting was conducted reasonably
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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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Fourth Amendment cases,
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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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Monthly Archives: December 2019
CA2: Def showed no reason to be able to obtain identify of CI who led to SW
Defendant’s motion to disclose the CI in the affidavit for search warrant was properly denied because the CI provided nothing to the case on guilt or innocence. United States v. Swinton, 2019 U.S. App. LEXIS 38141 (2d Cir. Dec. 23, … Continue reading
S.D.Tex.: Anonymous 911 call brought police to local store; seizures and patdowns were without RS
An anonymous 911 call about suspicious men in a small town store brought police. Because the town was small, it was easy to identify strangers, and the officers encountered them inside the store and brought them out. Ultimately there was … Continue reading
OH10: 911 call from ID’d person two men waving guns in a library is RS
911 call from an identified person that two men were waving guns in a library was reasonable suspicion. State v. Davidson, 2019-Ohio-5320, 2019 Ohio App. LEXIS 5399 (10th Dist. Dec. 24, 2019).* Defendant fails in his ineffectiveness claim. “Even assuming … Continue reading
S.D.N.Y.: Alleged violation of Florida law by def’s arrest there where local officer assisted federal officers wasn’t a 4A violation
An alleged violation of Florida law in defendant’s arrest there with the participation of local law enforcement isn’t shown to be a Fourth Amendment violation. “And Teman has not cited any authority so holding or, for that matter, treating such … Continue reading
CA9: DC erred in defining 4A at too “high [a] level of generality”; school officials get QI
Plaintiff was restrained in school for behavioral problems. The case law is not clear as to whether this was a Fourth Amendment violation or not because some restraint in school is reasonable. The district court found a Fourth Amendment violation … Continue reading
CA9: Not clearly established that shooting a bloody man waving a sharp stick at adults and children at a soccer field was clearly established
Plaintiff was bloody and wielding a sharp stick at adults and children at a soccer field. He disobeyed police commands. He was finally shot when he was kneeling and far enough away from others that he was a lesser threat. … Continue reading
SD: That same traffic stop issue was rejected before this one denies state reasonable mistake of law argument
The court previously held that two of three brake lights emitting only red light and one with a hole in it also emitting white light wasn’t a traffic offense. Therefore, the state couldn’t use a claim of objectively reasonable mistake … Continue reading
E.D.Tenn.: Dog sniff of car left parked on street was reasonable
The police used a dog to sniff around a car parked on the street that they believed belonged to defendant but defendant disavowed. No search warrant was needed. United States v. Davis, 2019 U.S. Dist. LEXIS 219490 (E.D. Tenn. Dec. … Continue reading
NY4: Anonymous call confirmed by observation was RS
“[T]he police had reasonable suspicion justifying the forcible detention of defendant ‘based on the contents of a 911 call from an anonymous individual and the confirmatory observations of the police’ …. [¶] Furthermore, even assuming, arguendo, that defendant established that … Continue reading
FL1 certifies to the FL S.Ct. whether the password to a cell phone is protected by the 5A
FL1 certifies to the FL S.Ct. whether the password to a cell phone is protected by the Fifth Amendment. Pollard v. State, 2019 Fla. App. LEXIS 18978 (Fla. 3d DCA Dec. 23, 2019): What is the proper legal inquiry when … Continue reading
CA8: Def was subjected to two patdowns, and both were reasonable and with separate RS
The arresting officer had probable cause to stop the vehicle in which defendant was riding based on the officer’s credible testimony that he believed the vehicle was speeding and that he had observed two possible traffic violations with the vehicle’s … Continue reading
NYTimes: The F.A.A. Wants to Start Tracking Drones’ Locations
NYTimes: The F.A.A. Wants to Start Tracking Drones’ Locations by Heather Murphy (“A proposal would require most drones flying in American airspace to include technology that would allow the government to keep tabs on them.”)
GA: Officers had PC a knife used in a murder was in a well; the SW said “curtilage” and didn’t have to say “well” to be valid
Officers obtained a search warrant involving a 34½ year old murder. After charges were filed the state sought a second search warrant to search a well for evidence. There was a substantial basis for searching the well based on the … Continue reading
D.Me.: DEA affidavit for SW for dealing MJ doesn’t need to exclude state MMJ purposes
The affidavit for search warrant said that multiple informants saw drugs being kept and dealt from defendant’s house and that there was a big safe in there. That’s probable cause. Omission of the possibility defendant was engaged in possession of … Continue reading
S.D.Tex.: Even though def’s Mexican LPN couldn’t be checked except for whether it was in a crime, the officer was still able to inquire
“The record shows that Sgt. Thumman determined almost immediately after the stop that Defendant’s [Mexican] registration was expired, which is an arrestable offense in Texas. Despite the 10-6 [don’t report back unless vehicle used in a crime], he was free … Continue reading
IA: Def already stopped in a one-lane alley had officer stop in front of her; not a seizure
“A police officer saw a vehicle driving suspiciously for several minutes in a residential neighborhood at night at a snail’s pace of ten miles per hour. After the vehicle entered a one-lane alley that ran between two streets and then … Continue reading
N.D.Cal.: Google location history case is dismissed without prejudice
The Google location history case is dismissed without prejudice with leave to amend. Plaintiffs don’t show it is an invasion of privacy just because Google tracked only when using Google services. Carpenter and Jones are rejected as binding authority. In … Continue reading