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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© 2003-22,
online since Feb. 24, 2003 Approx. 350,000 visits (non-robot) since 2012 Approx. 40,000 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)
DEA Agents Manual (2002) (download)
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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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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"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: Issue preclusion
CA11: No jurisdiction to enjoin investigation after execution of SW
A District Court has no anomalous jurisdiction to bar the government from using evidence seized with a search warrant in an investigation. There are other remedies at the appropriate time. Trump v. United States. 2022 U.S. App. LEXIS 33296 (11th … Continue reading
D.S.D.: Totality of circumstances showed def likely resided in dwelling for entry on arrest warrant
Based on the totality of circumstances, officers finally had good reason to believe defendant resided in the dwelling he was found in, and the arrest warrant alone was enough to justify entry. United States v. Ulrich, 2022 U.S. Dist. LEXIS … Continue reading
N.D.Ind.: Franks hearing ordered over officer’s claim of smell of MJ
Defendant gets a Franks hearing even if to rebut the government’s claim the good faith exception applies. The affiant officer claimed there was an “overwhelming” smell of marijuana coming from defendant’s house as they approached for a knock-and-talk, which was … Continue reading
E.D.Va.: Could have seen for plain view isn’t the same as actually seeing
Defendant did not abandon the vehicle he was driving with permission of the owner. When officers asked for consent he said it wasn’t his and it was his “baby mama’s” vehicle. Her permission gave him standing. The court disagrees with … Continue reading
W.D.Ky.: Clerical error in filestamp of SW return not prejudicial error
Relying on a file mark stamp on a search warrant return that was a year and a few days earlier, defendant claims the issuing judge and officers conspired to back date everything to coverup an illegal search. That’s speculative. The … Continue reading
N.D.Ga.: Not IAC to not pursue unsettled 4A question
2255 petitioner doesn’t show ineffective assistance of counsel on counsel’s not pursuing a Fourth Amendment claim on an unsettled question of law. That’s professional judgment. He has to show that the issue was clearly meritorious. Brito-Arroyo v. United States, 2022 … Continue reading
IN: Male occupant’s consent to search his house didn’t include the purse of a woman that lived there
Male occupant’s consent to search his house didn’t include the purse of a woman that lived there. The officer could not reasonably believe that he had apparent authority over that. Cinamon v. State, 2022 Ind. App. LEXIS 345 (Oct. 25, … Continue reading
PA: State’s statement of issues for review didn’t include the precise issue argued so it’s waived
The state in its statement of issues below addressed probable cause but did not mention inevitable discovery. That amounted to a waiver. “The inevitable discovery doctrine is not a subsidiary issue to a claim of adequate probable cause to support … Continue reading
OH8: No PC for hot pursuit into house on less than RS
The state showed no probable cause to justify a warrantless entry into the home of a fleeing misdemeanant. Police got a citizen’s report of a possible impaired driver. When they found the car, it had just pulled into the driveway … Continue reading
E.D.Ky.: Def shows nothing to support claim taint team violated attorney-client privilege in review after SW
Defendant argued that the execution of this search warrant resulted in disclosure of attorney-client privileged information because of alleged misuse of a taint team. But, he provides no context or anything to go on. Taint teams are recognized in such … Continue reading
S.D.N.Y.: Court has no jurisdiction to interfere with a laptop search initiated in another district
“The Court will not interfere with the Government’s review of the laptop pursuant to a search warrant obtained from a different Court — except to require the Government to submit a status update no later than October 28, 2022. As … Continue reading
CA11: Declaratory judgment suit over search properly dismissed as interfering with criminal process
Plaintiff sought a declaratory judgment about a search issue underlying a criminal investigation. The district court dismissed because there was a remedy in the investigation, if it gets that far. Affirmed. Hawk Innovative Tech, LLC v. United States, 2022 U.S. … Continue reading
E.D.Pa.: On scene seizure for a show-up was reasonable
Defendant’s seizure hiding behind a motorcycle for a victim’s ID to determine whether he was involved in a car jacking was reasonable. United States v. Dangerfield-Hill, 2022 U.S. Dist. LEXIS 168306 (E.D. Pa. Sep. 19, 2022). District court’s injunction against … Continue reading
MD: Appointment of state trial judges not 4A violation; they have statewide jurisdiction for SWs
Maryland trial judges have statewide jurisdiction for search warrants. Thus, the assignment of judges in Baltimore by the Chief Judge of the state high court violated nothing under the Fourth Amendment. (Without citing Virginia v. Moore. And, even if it … Continue reading
D.C.Cir.: Question of fact remains on whether PC dissipated before second handcuffing
“We reverse the district court’s grant of summary judgment on the false arrest claims for two reasons. First, there is a genuine dispute of material fact as to whether probable cause for the simple assault charge dissipated before Lin was … Continue reading
W.D.Wash.: Dog sniff in apt building breezeway violated no REP, and it was moot anyway
On the totality, there was probable cause for cell phone search warrants. One can attempt to explain away the pieces, but the totality shows it. A dog sniff in the breezeway of an apartment complex violated no reasonable expectation of … Continue reading
CA9: PC determination in underlying criminal case precludes review in later § 1983 case
Plaintiff’s probable cause determination in his underlying criminal case was given preclusive effect in his later § 1983 case. Wilcox v. City of L.A., 2022 U.S. App. LEXIS 24350 (9th Cir. Aug. 29, 2022). Plaintiff overcame qualified immunity. “Under Louisiana … Continue reading
