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ABA Journal Web 100, Best Law Blogs (2017); ABA Journal Blawg 100 (2015-16) (discontinued 2018)
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© 2003-23,
online since Feb. 24, 2003 Approx. 350,000 visits (non-robot) since 2012 Approx. 45,000 posts since 2003 (25,700+ on WordPress as of 12/31/22)~~~~~~~~~~~~~~~~~~~~~~~~~~
Fourth Amendment cases,
citations, and linksLatest Slip Opinions:
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FDsys, many district courts, other federal courts
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To search Search and Seizure on Lexis.com $Research Links:
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F.R.Crim.P. 41
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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
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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“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!”
"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: Suppression hearings
S.D.Ga.: Geofence warrant based on 16 SWs showed PC and GFE
(1) Defendant lacks standing to challenge a geofence warrant to the cell phone accounts held by others. The affidavits for 16 warrants all showed probable cause. The possibility of a different standing for probable cause for novel surveillance is rejected. … Continue reading
NM: Suppression issues should not be decided at preliminary hearings
A preliminary hearing isn’t a proper place to resolve potential suppression issues. They happen on a “brisk time line” and the rules of evidence don’t apply to them. This is committed to the pretrial process in the trial courts. State … Continue reading
OH4: No bar to judge who issued SW also hearing suppression motion
There is no due process or judicial ethics restriction on a suppression hearing judge hearing the validity of the warrant he or she issued. State v. Taylor, 2023-Ohio-2995, 2023 Ohio App. LEXIS 2982 n.1 (4th Dist. Aug. 22, 2023):
CA10: 2255 petitioner learned after guilty plea A-C communications were recorded in jail; no relief from plea because no effect shown
2255 petitioner was in pretrial incarceration in the private jail in Leavenworth which notoriously recorded conversations between attorneys and clients. He pled guilty with the standard 2255 waiver. This violation of his rights does not survive the waiver, and he … Continue reading
OH5, D.Minn.: Not calling additional witnesses at suppression hearing didn’t change outcome
There was reasonable suspicion for the stop here, and defense counsel wasn’t ineffective for not calling another witness that wouldn’t have changed the outcome. State v. Ware, 2023-Ohio-1807 (5th Dist. May 30, 2023).* In a tax warrant case, defense counsel … Continue reading
NJ: Disputes in the facts on appeal show trial court should have held a hearing
“[W]e are persuaded the conflicting statements of fact presented by the State and defendant establish disputes of material fact warranting a testimonial hearing. The State claimed the search was justified under the plain view exception to the warrant requirement. Thus, … Continue reading
OH3: Def’s motion to determine legality of arrest never sought to suppress anything and wasn’t appealable
Defendant’s motion to determine the legality of his arrest was not even called a motion to suppress. It was not even appealable as it was framed. “[T]he motion filed by Sanchez on October 28, 2020, was not captioned a ‘motion … Continue reading
CA10: “perfunctory factual references” with three legal theories not enough to get a suppression hearing
“Rather than outline factual disputes, Windom’s motion to suppress offered three legal arguments—staleness, nexus, and lack of good faith—for why the affidavit was insufficient to support a search warrant. These arguments contained only perfunctory factual references, with none rising to … Continue reading
D.N.J.: Why a suppression hearing is sometimes needed
The hearing here got behind the boilerplate of the police reports and results in the stop being without reasonable suspicion, and it is suppressed. United States v. Wright, 2022 U.S. Dist. LEXIS 133312 (D.N.J. July 27, 2022):
E.D.Tenn.: Challenge of CI’s ID of def in 4A suppression hearing not the remedy; that’s a trial question
Defendant seeks suppression of the CI’s identification of him within the search warrant process, which the court declines to do. Due process issues with identification are trial issues, not Fourth Amendment motion to suppress issues. “Either remedy, exclusion of the … Continue reading
D.Maine: Officer’s subjective motivations for crime fighting didn’t make an otherwise reasonable traffic stop unreasonable
The state trooper that stopped defendant for an objective traffic violation apparently had subjective motivation to look for other crimes, but his subjective motives aren’t determinative of anything. United States v. Fagan, 2021 U.S. Dist. LEXIS 141949 (D. Maine July … Continue reading
CA7: Confrontation clause doesn’t apply in suppression hearings
The confrontation clause does not apply in suppression hearings. United States v. Bebris, 2021 U.S. App. LEXIS 20974 (7th Cir. July 15, 2021). The apartment’s search warrant was for evidence of drug sales from it. Those found there at the … Continue reading
CA4: No REP in FedEx packages with drugs sent to a dead man as a cover
Defendant had no reasonable expectation of privacy in FedEx packages with drugs sent to a friend’s house in the name of the friend’s deceased brother. United States v. Rose, 2021 U.S. App. LEXIS 20406 (4th Cir. July 9, 2021). When … Continue reading
FL5: Police report’s stating search was search incident isn’t binding at the suppression hearing
The officer’s noting the search of defendant’s vehicle was incident to arrest was incorrect and not binding at the suppression hearing. It was valid as an inventory. State v. Koontz, 2021 Fla. App. LEXIS 9019 (Fla. 5th DCA June 18, … Continue reading
CA3: No suppression hearing needed on the mere chance something will turn up
The request for an evidentiary hearing on a suppression motion based on the mere hope something might turn up is really just speculation and should be denied. United States v. Dfouni, 2021 U.S. App. LEXIS 15091 (3d Cir. May 19, … Continue reading
CA3: Mid-trial suppression argument wasn’t timely
Defendant’s mid-trial suppression motion was untimely despite the defense claim that this was a second search he wasn’t aware of until it came up at trial. United States v. Elcock, 2021 U.S. App. LEXIS 9503 (3d Cir. Apr. 1, 2021). … Continue reading
M.D.Tenn.: Def failed to show parole search was unreasonble
This parole search wasn’t shown to be unreasonable. “As discussed in the above cited case law, there is a significant government interest in combating recidivism and thwarting illegal drug activity by parolees. Defendant has failed to point to any direct … Continue reading
Cal.2: Litigating a motion to suppress with an affidavit sealed in part from the defense
People v. Washington, 2021 Cal. App. LEXIS 196 (2d Dist. Mar. 9, 2021):
D.D.C.: 6A, due process, and F.R.Crim.P. 43 don’t mandate in person 4A suppression hearings during Covid
The court prefers to hold suppression hearings in person because, in many cases, it is the most important pretrial proceeding. But, while a suppression hearing is a critical stage where the right to effective assistance of counsel has attached, the … Continue reading
