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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© 2003-21,
online since Feb. 24, 2003
WebPage Visits: real non-robot hits since 2010; approx. about 30,000 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)
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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
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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: Admissibility of evidence
E.D.Wis.: Video of aftermath of execution of SW more prejudicial than relevant under Rule 403
In a civil case over a shooting of dogs during execution of a search warrant, the court rejects that the warrant was unreasonable but finds the bodycam of shooting the dogs and the aftermath irrelevant and inflammatory under Rule 403. … Continue reading
M.D.Pa.: Credibility finding against officer in motion to suppress hearing in another case not admissible impeachment
The district court’s findings in another case that the officer here was not credible in his suppression hearing testimony could not be used to impeach the officer at trial in this cases, following United States v. Thompson, 2011 WL 2446564, … Continue reading
KY: Deputy in one county could go to another to investigate; no motion to suppress lies for statutory violation, if there even was one
A motion to suppress for a statutory violation doesn’t work in Kentucky absent a constitutional violation to found it on. Here, a deputy from one county crossed into another county to investigate. The statute defendant relies on deals with arrest, … Continue reading
CO: Officer executing SW on Dropbox can authenticate the production at trial
When a search warrant is executed on a Dropbox account, the seizing officer’s knowledge of the seizure can authenticate the production. People v. Abad, 2021 COA 6, 2021 Colo. App. LEXIS 89 (Jan. 28, 2021). Franks offer fails: “The facts … Continue reading
NY1: A prior search admissible to show knowledge and lack of mistake when entrapment is raised
Defendant was a police officer charged with engaging in drug transactions. The defense was entrapment. A prior search warrant for drugs at an aunt’s apartment was admissible [404(b)] on the entrapment claim where she was present but not charged. People … Continue reading
E.D.Pa.: State court’s suppression of evidence is a fact question for trial on underlying facts and findings and not preclusive
Plaintiff was charged in state court with possession, and the state court credited his version over that of the officers on the basis for the stop because their testimony was contradictory and confusing. Still, that doesn’t have preclusive effect in … Continue reading
ND: Evidence seized by SW still needs to comply with rules of evidence to be admissible
Just because evidence was seized with a search warrant doesn’t make it admissible. The rules of evidence or other statute or rule still have to be complied with. City of Fargo v. Hofer, 2020 ND 252, 2020 N.D. LEXIS 264 … Continue reading
CA5: Def’s contesting authenticity of jail calls let the govt establish they came from jail
Not a search claim: Admission of jail telephone calls didn’t undermine the presumption of innocence. Defendant wouldn’t stipulate to authenticity so the government had to establish the source of the calls. United States v. Arayatanon, 2020 U.S. App. LEXIS 35922 … Continue reading
CA5: GFE question is reasonableness of executing officer’s belief in PC
The district court erred in finding that the search warrant here was bare bones and that the good faith exception did not apply. There was a factual basis from which a reasonable officer would conclude there was probable cause. “But, … Continue reading
OH8: Denial of cross-examination over affidavit for SW was harmless here
Officer’s statement in affidavit was assumed to be subject to cross-examination for impeachment purposes, but it was harmless error here. State v. Butts, 2020-Ohio-5011, 2020 Ohio App. LEXIS 3843 (8th Dist. Oct. 22, 2020).* [Note: a new § 60.57 on … Continue reading
AR: Video of arrest wasn’t claimed below to be a const’l claim, so it’s waived
Defendant sought to suppress the video of his arrest where he held a knife to his throat but he cited nothing for the Fourth, Fifth, or Sixth Amendment, but he did cite Rule 403. The state argued it was evidence … Continue reading
FL4: SW of def’s cell phone authenticated text messages
After a search warrant produced defendant’s text messages, the state was able to authenticate them by the phone. State v. Torres, 2020 Fla. App. LEXIS 14356 (Fla. 4th DCA Oct. 7, 2020). “In addition, ‘[d]uring a valid traffic stop, officers … Continue reading
TX6: SW affidavit not admissible at trial
Defendant was prejudiced by admission of the search warrant and affidavit for it over defense objection. When defendant testified he was asked about all his porn, adult and apparent less than adult. [Why did he testify knowing that was coming?] … Continue reading
OK: False name given during execution of SW admissible to impeach credibility
“The State’s questions about Appellant having given a false name to authorities during the execution of a search warrant earlier in the summer of 2015 was relevant as a general matter to impeach Appellant’s credibility.” Knapper v. State, 2020 OK … Continue reading
D.Minn.: Two SWs on consecutive days were part of same investigation so they aren’t severed for trial
Two search warrants on consecutive days produced drug counts against defendant. They are part of the same investigation, so they are joined for trial. United States v. Martin, 2020 U.S. Dist. LEXIS 141845 (D. Minn. July 6, 2020). Ineffective assistance … Continue reading
CA11: A cell phone with 2kg of heroin and cash is PC for the phone
“[L]aw enforcement officers had probable cause to obtain a warrant to search the cell phone because it was found in a truck with two kilograms of heroin and $24,000 of loose currency during the investigation into the heroin-distribution conspiracy.” CoA … Continue reading
CA5: Expert opinion on reasonableness in 1983 case improper
“We first find that the district court did not abuse its discretion in excluding portions of testimony from two of Albert’s expert witnesses—Richard Lichten, a police-procedure expert, and Dr. Kris Sperry, the former Chief Medical Examiner for the State of … Continue reading
W.D.N.Y.: Exigency usually applies in seizure of computer for CP
“Given that the Defendant admitted that he had used the laptop to view child pornography previously, it appears beyond dispute that Couch had such probable cause. … [¶] Defendant instead argues that the Government failed to prove that an exigent … Continue reading
TN: Motion to suppress wasn’t decided but state didn’t offer evidence at trial until defense opened the door; admitted as 404(b)
The state sought a search warrant for cell phones and then lost the product before trial. They still had the phones and looked again without a warrant just before trial. Defendant moved to suppress but argued that the phones weren’t … Continue reading
NE: Typographical error on date in SW application can be overlooked if apparent it’s wrong
A typographical error in the date of the application for search warrant could be overlooked where the actual date can be determined from the whole. State v. Benson, 305 Neb. 949 (May 29, 2020). Defendant moved to suppress his DNA … Continue reading
