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- CA7: Jail officials holding plaintiff under a valid court order aren’t liable for not releasing him sooner after a sentencing error
- Volokh: Do Fourth Amendment Protections Change When Property Is Moved?
- M.D.Pa.: Def was neither shipper nor recipient of USPS parcel, so he had no standing in it
- WI: Obtaining def’s DNA by ruse wasn’t an illegal search
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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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--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: Admissibility of evidence
N.D.Ohio: Even suppressed evidence can sometimes be used in rebuttal if the door is opened
The government says that it is not going to use evidence from the search of defendant, but it reserves its ability to attempt to use it in rebuttal, if defendant opens the door. The possibility of a superseding indictment to … Continue reading
CA10: High speed chase justifies search under automobile exception
A high speed chase justifies an automobile exception search of the car when it’s finally stopped. Here there was a dog alert before. United States v. Chavez, 2021 U.S. App. LEXIS 29287 (10th Cir. Sept. 28, 2021). The rules of … Continue reading
D.Conn.: A concealed carry permit is not cause for handcuffing a motorist
A concealed carry permit is not cause for handcuffing a motorist. Soukaneh v. Andrzejewski, 2021 U.S. Dist. LEXIS 147750 (D.Conn. Aug. 6, 2021). The lack of an arrest warrant isn’t relevant in an excessive force case where officers came to … Continue reading
CA7: SW affidavit would have been useful at sentencing on drug quantity but defense didn’t offer it
The search warrant affidavit here could have been relevant to the drug quantity calculation, and defendant should have put it into evidence at sentencing. United States v. Rollerson, 2021 U.S. App. LEXIS 22622 (7th Cir. July 30, 2021). Defendant was … Continue reading
NM: Legality of search and seizure not an issue for preliminary hearing
It is not the district court’s statutory function to consider the legality of seizure of evidence at a preliminary hearing. State v. Ayon, 2021 N.M. App. LEXIS 44 (July 27, 2021):
SD: Failure to put video of stop in record limits review of lack of consent claim
Failure to put the video of defendant’s stop in the record means the court can’t consider it on appeal, and it goes from the trial court’s findings. State v. Slepikas, 2021 SD 43, 2021 S.D. LEXIS 82 (July 21, 2021) … Continue reading
CO: Use of flashbang in raid because def was probably armed was non-hearsay at trial
A warrant-executing officer explaining at trial why they used a flashbang device in the raid said it was because the CI told them defendant often carried a gun. No limiting instruction was sought. This was not hearsay because it wasn’t … Continue reading
NY2: Failure to object to SW papers admitted into evidence at trial was waiver
Failure to object to admission of the search warrant papers into evidence at trial was waiver. People v. Mack, 2021 NY Slip Op 04377, 2021 N.Y. App. Div. LEXIS 4456 (2d Dept. July 14, 2021).* “The Supreme Court reversed our … Continue reading
LA5: Chain of custody issue after search isn’t a motion to suppress issue
A chain of custody dispute from a search isn’t proper in a motion to suppress. That’s a trial issue. State v. Mackey, 2021 La. App. LEXIS 1068 (La. App. 5 Cir. July 12, 2021). “Plaintiff Sally Gaetjens sued various local … Continue reading
CA8: GPS info can provide RS as to def’s location whether or not it’s admissible at trial
GPS information as to defendant’s location can be reasonable suspicion despite defendant’s claims it might not be admissible at trial. United States v. Martin, 2021 U.S. App. LEXIS 16822 (8th Cir. June 7, 2021):
NY1: Cross-examination about potential suspects let go from scene of search opened door to suppressed statement
Defendant’s cross-examination about others not ultimately charged after the search opened the door to his suppressed statement. “First, defendant elicited that although the police arrested him and the other two persons who were in his apartment at the time a … Continue reading
E.D.Mich.: Just because a motorist can be ordered out of the car, that doesn’t permit the officer to open the door for him
Just because a motorist can be ordered out of the car, that doesn’t enable the officer to open the door for him. “As explained above, however, Trooper Miller’s stated purpose included an investigatory motive—verifying whether ‘something’ had been concealed—and his … Continue reading
E.D.Tenn.: Def first refused consent to DNA then sought it; initial refusal not excluded
Defendant declined to consent to a DNA test during his statement which is sought to be admitted. He later sought and consented to a DNA test. It should not be excluded at trial because it isn’t seeking to penalize his … Continue reading
W.D.N.Y.: 4A ER does not apply to def’s claim records obtained from others were “unreliable”
Defendant’s argument that the records obtained by search warrant from other are unreliable is not a Fourth Amendment exclusionary rule question. United States v. Skinner, 2021 U.S. Dist. LEXIS 84377 (W.D. N.Y. May 3, 2021). A burnt blunt on the … Continue reading
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