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ABA Journal Web 100, Best Law Blogs (2017); ABA Journal Blawg 100 (2015-16)
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© 2003-20,
online since Feb. 24, 2003
WebPage Visits: real non-robot hits since 2010; approx. 25k posts since 2003~~~~~~~~~~~~~~~~~~~~~~~~~~
Fourth Amendment cases,
citations, and linksLatest Slip Opinions:
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To search Search and Seizure on Lexis.com $Research Links:
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Federal Law Enforcement Training Center Resources
FBI Domestic Investigations and Operations Guide (2008) (pdf)
DEA Agents Manual (2002) (download)
DOJ Computer Search Manual (2009) (pdf)
Stringrays (ACLU No. Cal.) (pdf)
Congressional Research Service:
--Electronic Communications Privacy Act (2012)
--Overview of the Electronic Communications Privacy Act (2012)
--Outline of Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012)
--Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012)
--Federal Laws Relating to Cybersecurity: Discussion of Proposed Revisions (2012)
ACLU on privacy
Privacy Foundation
Electronic Frontier Foundation
NACDL’s Domestic Drone Information Center
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Criminal Appeal (post-conviction) (9th Cir.)
Section 1983 Blog"If it was easy, everybody would be doing it. It isn't, and they don't."
—Me“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"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: Burden of pleading
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
CA2: Barring cross-examination on execution of SW on cell phone wasn’t shown to be prejudicial
The district court didn’t err in sustaining the government’s objection to cross-examination about the execution of the search warrant on defendant’s cell phone because there was no showing that the warrant wasn’t improperly executed. United States v. Vargas, 2020 U.S. … Continue reading
D.Nev.: Affidavit for SW for DNA showed PC by parallels between two crimes and def
“The underlying facts in the affidavit compare the actions of Tualua with the actions of the people who committed the prior EZ Pawn robberies, which would allow the issuing judge to make his or her own conclusions. Under the totality … Continue reading
CA9: Motion to suppress tax records obtained by IRS because his “private property interests” were invaded wasn’t presented below and is waived
“Galloway next argues that the district court erred in denying his motion to suppress because the IRS’s warrantless inspection of his financial records violated his private-property interests under the Fourth Amendment. But Galloway ‘never requested suppression on this ground in … Continue reading
Cal.: Mid-trial objection to question based on lack of PC for search was untimely objection to the search
A mid-trial objection to evidence on the ground there was no probable cause for the police action in the search was untimely. It can only be brought during trial if the facts weren’t known until then, and that’s not what … Continue reading
E.D.Pa.: Hiding gun in wheel well of vehicle of another was abandonment; nothing after that has any legal effect
Hiding a gun in the wheel well of someone else’s vehicle to keep it from the police is an abandonment. “Defendant had no reasonable expectation of privacy in the wheel well of someone else’s red Ford parked on a public … Continue reading
D.D.C.: Example of distancing the client from drugs but maintaining standing
Like walking a tightrope: United States v. Thorne, 2020 U.S. Dist. LEXIS 4291 (D.D.C. Jan. 10, 2020):
D.Nev.: Def’s motion to join codef’s motion to suppress requires showing of REP in joinder motion
Defendant’s motion to join a codefendant’s motion to suppress requires a showing of his reasonable expectation of privacy in the joinder motion. United States v. Palafox, 2020 U.S. Dist. LEXIS 3698 (D. Nev. Jan. 7, 2020). “[T]he affidavit includes facts … Continue reading
W.D.N.Y.: A mere general statement in motion to suppress SW lacks PC doesn’t preserve the issue
Defendant’s general argument that probable cause was lacking for the search warrant in this case was inadequate to preserve the issue. Even considering the merits, there was probable cause. United States v. Dolson, 2019 U.S. Dist. LEXIS 216913 (W.D. N.Y. … Continue reading
OH: State has burden to plead lack of standing in response to a motion to suppress and can’t remain silent without waiving
When defendant files a motion to suppress and the state questions standing, it has the burden of going forward to at least raise the issue so defendant can meet it. Without doing so in the trial court, the state waives … Continue reading
E.D.N.C.: On a video that’s integral to the PC, the reliability of the time stamp isn’t to be inquired into or it becomes a “hypertechnical” review
Defendant was on a surveillance video 33 days before a search warrant was sought for the weapon since he was a felon. The warrant was not stale because people almost always keep firearms for a long time. Defendant’s challenge to … Continue reading
IN: Def’s raising GFE for first time in reply brief is waiver
It’s defendant’s burden in challenging a search warrant to raise both the defects in the warrant (such as a lack of probable cause) and inapplicability of the good faith exception. Raising the good faith exception in his reply brief is … Continue reading
