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- W.D.Ark.: Parole search waiver moots lack of PC argument
- AR: RS shown for boating while intoxicated stop
- W.D.Mo.: Wrong address in SW wasn’t fatal where right house was searched
- NY: Failure to show independent source for officer’s observation of def required reversal
- VA: Outline of a gun in def’s pocket was RS
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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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Daily Archives: April 2, 2020
E.D.Wis.: IAC shown for failure to move to suppress arrest in own home
Defendant satisfied his burden of showing ineffective assistance of counsel for defense counsel’s failure to file a motion to suppress that the entry into the house violated the Fourth Amendment and this tainted defendant’s consent. There is no strategic reason … Continue reading
CA6: Social workers’ in-school interviews of children violated 4A, but law not clearly established
Social workers’ in-school interviews of children of a parent who tested positive for drugs violated the Fourth Amendment, but they get qualified immunity because no case holds what they did was clearly established. Schulkers v. Kammer, 2020 U.S. App. LEXIS … Continue reading
SCOTUSBlog: Petitions of the week
SCOTUSBlog: Petitions of the week includes: Hamm v. Tennessee19-1059Issue: Whether police violate the Fourth Amendment when they conduct a suspicionless search of a probationer’s home.
Reason: COVID19 Exposes the Shallowness of Our Privacy Theories
Reason: Volokh Conspiracy: COVID19 Exposes the Shallowness of Our Privacy Theories by Jane Bambauer:
PA: Changing search argument between trial court and appeal is waiver
Changing the nature of the suppression claim between the trial court and appeal is a waiver. There was a fact dispute on the reason for inventory which was resolved against the defendant. Commonwealth v. Peak, 2020 Pa. Super. LEXIS 255 … Continue reading
Law.com: NJ Supreme Court Affirms Prosecutors’ Right to Subpoena Inmate Phone Recordings
Law.com: NJ Supreme Court Affirms Prosecutors’ Right to Subpoena Inmate Phone Recordings by R. Robin McDonald (“The New Jersey Supreme Court on Wednesday affirmed that prosecutors can subpoena recordings of telephone conversations made by defendants held in county detention facilities. … Continue reading
CA8: What officer knows that wasn’t in affidavit for SW can be considered in applying GFE
The officer presented the affidavit for search warrant for child pornography on a computer to the issuing judge who read it through and asked no questions. This did not make the judicial officer a “rubberstamp” for the police. Thus, the … 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
PA: No right to leave vehicle parked on another’s property to avoid inventory
Defendant showed standing by showing that he bought the car he was driving and put it in his sister’s name, and he was the only person who drove it. The inventory was proper because there was no right to leave … Continue reading
OH9: Pro se 4A argument never presented to trial court not considered
Pro se argument that the search warrant was invalid wasn’t preserved by a motion to suppress in the trial court. State v. Daniels, 2020-Ohio-1176, 2020 Ohio App. LEXIS 1097 (9th Dist. Mar. 30, 2020).* Plaintiff’s Fourth Amendment claim (among others) … Continue reading
CA9: Use of force against autistic person posing no threat was excessive
Qualified immunity was properly denied the officer on plaintiff’s claim that the officer was alleged to have used excessive force. After seeing that plaintiff was holding only a string and certainly after learning that he was autistic, no officer of … Continue reading
CA6 subsumes PC into the GFE, reading it out of the 4A
“Govea’s brief stop at his home—immediately before driving to the scene of a controlled buy and immediately after driving to his home from the home of the seller in the controlled buy, with the seller as a passenger—connected the drug … Continue reading
W.D.Ky.: Franks challenge fails because of complete lack of materiality
Moreover, Perkins did not — and cannot — make a preliminary showing that any alleged ‘false statement or material omission [was] necessary to the probable cause finding in the affidavit.’ If the Court were to strike every contested statement from … Continue reading
CA6: Tip of man pacing in a parking lot in an area known for burglaries was RS for stop
Defendant was found to be the subject of a tip that a man was pacing in a parking lot in an area known for burglaries. When confronted, the officer found a warrant for his arrest. When his vehicle had to … Continue reading