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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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Category Archives: Suppression hearings
D.Nev.: Def couldn’t show that hotel room was searched without a warrant by the information off the electronic lock which was unreliable
Defendant alleges that officers searched his LV hotel room before the search warrant arrived. The information from the electronic lock is not reliable [so there, CSI] as to the entries into the room, and the search warrant is valid. United … Continue reading
CA4: Def’s cross of officer at trial on SW affidavit “opened the door” to def’s priors
Defendant’s cross examination of the officer who authored the affidavit for the search warrant to attack his credibility by the affidavit “opened the door” to defendant’s other crimes which were admitted under 404(b) on the government’s request on redirect. United … Continue reading
IL: Not error for court to decline to continue suppression hearing for what would have been merely cumulative evidence having no affect on outcome
It was not error to deny a continuance in a suppression hearing after it started because one officer was unavailable due to a death in the family. The defense didn’t even know what he would testify to when asked, but … Continue reading
N.D.W.Va.: A motion to suppress isn’t moot just because the govt says it won’t use the evidence in its case-in-chief; if it will to impeach, then the issue has to be resolved
Government’s agreeing it wouldn’t use the product of a search in its case in chief does not make it moot unless the government also says it won’t use it in impeachment. Then, it can only be used against the defendant … Continue reading
OK: Trial court’s granting motion to suppress without even considering GFE on state’s request was an abuse of discretion
The trial court abused its discretion in granting the motion to suppress the search warrant without even considering the good faith exception after the state raised it. State v. Haliburton, 2018 OK CR 28, 2018 Okla. Crim. App. LEXIS 28 … Continue reading
ME: Def was about to go into surgery after suspected DWI and accident; warrantless blood draw was with exigency and PC
Defendant was in a serious accident, and he was about to go into surgery. The blood draw at the request of the police was with exigent circumstances and probable cause. State v. Palmer, 2018 ME 108, 2018 Me. LEXIS 111 … Continue reading
D.Nev.: While def’s firearm was suppressed, it can come in by impeachment if he opens the door at trial
Defendant’s firearm was previously suppressed. If at trial he opens the door to the gun, it can be referred to by proper impeachment. United States v. Casarez, 2018 U.S. Dist. LEXIS 112536 (D. Nev. July 6, 2018). Defendant was granted … Continue reading
GA: In responding to 911 call of a loud party where homeowners weren’t present, entry into backyard violated curtilage
Police received a report of a party going on at a house, and they walked to the back of the house where it was. There were many people on a deck, and they suspected from a radio call that the … Continue reading
N.D.Ill.: Collins v. Virginia doesn’t apply to a shared parking area which is not curtilage
Collins v. Virginia does not apply to shared parking areas which are not curtilage. “United States v. Jones, 2018 U.S. App. LEXIS 16409 (2d Cir. June 19, 2018), Jones’s vehicle was parked in a parking lot behind the multi-family building … Continue reading
OH2: Trial court can’t add an issue to a suppression hearing without notice to parties
“[T]he State contends that the trial court improperly expanded the scope of Day’s motion to suppress to include the issue of whether the manner/location of Day’s arrest was lawful and then based its decision on that issue. We have held … Continue reading
D.N.J.: Previous finding of good faith applies to later Franks challenge
Defendant had already filed a suppression motion and lost on good faith. Now he files a motion based on Franks that statements of witnesses in quote marks weren’t accurate. The previous finding of good faith carries over to here, and … Continue reading
AR: The right to counsel applies at suppression hearings
The right to counsel applies at suppression hearings. Defendant’s attempted waiver was ineffective. Shabazz v. State, 2018 Ark. App. 281, 2018 Ark. App. LEXIS 298 (May 2, 2018). The officer writing the affidavit misstated the evidence that another officer smelled … Continue reading
CA11: There is no adverse inference as a matter of law from failure to maintain audio of stop
Because the exclusionary rule is a “last resort,” on plain error review, defendant cannot claim error for the failure of the district court to determine that his version of the facts is more credible than the governments. There is no … Continue reading
TN: Argument “the rule” of witness exclusion of Rule 615 at suppression hearing has to be made in trial court
Defendant didn’t preserve for appeal his argument that the suppression hearing court allowed witnesses to sit in the rehearing of the suppression hearing because he didn’t make it to the trial court. At any rate, the transcripts of the hearing … Continue reading
TN: There’s normally no reason why the judge that issued the SW would be a witness at a suppression hearing on a Franks motion
The judge that issued the search warrant is not required to recuse from being the trial judge, so there was no ineffective assistance of counsel for failure to raise that issue. Moreover, the issuing judge would not be a witness … Continue reading
The Champion: Breaking Blue: Challenging Police Officer Credibility at Motions to Suppress
Jennifer Sellitti, Breaking Blue: Challenging Police Officer Credibility at Motions to Suppress, 41 The Champion (No. 10) 16 (Dec. 2017):
LA2: Hearsay admissible in suppression hearings; here it was officer’s preliminary hearing testimony which showed exigency
Hearsay is admissible in a suppression hearing. The parties agreed here that the officer’s testimony at the preliminary hearing would be the basis for the suppression hearing, and it shows exigent circumstances for the entry into defendant’s home. State v. … Continue reading
LA5: Hearsay on driver’s consent admissible at suppression hearing
The trial court found the stop was reasonable for shooting from a car and driver consented based on the testimony of the stopping officer. Defendant’s claim that the driver’s consent was hearsay and inadmissible was rejected. All other exceptions for … Continue reading