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- S.D.W.Va.: Issuance of a criminal citation is not a seizure
- E.D.Mo.: Evidence of the search comes in because it “completes the story”
- E.D.Wis.: Ptf’s claim judge’s signature on SW was forged fails for not even alleging there was a search
- W.D.Mich.: Search and seizure Brady, even if there was one, wouldn’t change the outcome
- W.D.Mich.: State law violation in search irrelevant in federal prosecution
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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 (27,400+ on WordPress as of 7/23/24) -
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Congressional Research Service:
--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: Unreasonable application / § 2254(d)
N.D.Cal.: No standing in ALPR info of car def didn’t drive
Defendant’s motion to suppress automated license plate reader (ALPR) data on the family car that he didn’t drive is denied for lack of standing. Also, the holder of the information was a third-party contractor. United States v. Butler, 2024 U.S. … Continue reading
E.D.Mich.: Younger bars federal injunction against state criminal prosecution
Younger bars an injunction against defendant’s criminal prosecution for an alleged illegal search. McDowell v. Plymouth Twp. Police Dep’t, 2024 U.S. Dist. LEXIS 96568 (E.D. Mich. May 30, 2024). “Reasonable jurists could not disagree with the district court’s denial of … Continue reading
E.D.Cal.: The fact mj is legal in CA doesn’t make it so in a national park; plain smell was PC
Defendant’s stop was based on a radio report of an older Lexus driving erratically. When the officer saw the car, the LPN was expired. The stop led to the officer smelling marijuana. The smell was enough to invoke the automobile … Continue reading
UT: RS on a prior day was not RS for stop on day in question
Even assuming the officer had reasonable suspicion defendant was involved in a prior incident, he had no reasonable suspicion for stopping defendant this time. State v. Correa, 2024 UT App 69, 2024 Utah App. LEXIS 69 (May 9, 2024). Petitioner … Continue reading
W.D.Ky.: Illegal stop that was suppressed not excluded in § 1983 case
“Although the marijuana in Codrington’s car was discovered through an unreasonable search, that is immaterial to the Court’s analysis because the Fourth Amendment’s exclusionary rule does not apply to § 1983 proceedings. As long as the marijuana found in Codrington’s … Continue reading
D.N.D.: Defs showed no connection to the premises as overnight guests to have standing
Defendants had no real connection to the place searched to have standing. “There was no evidence presented to support the Defendants’ allegation that they had permission from the owners (Stevens and Levings) to stay in the home as overnight guests. … Continue reading
D.Kan.: Cross-designated state-federal officer was “federal officer” for assault charge during execution of SW
Assaulting a state officer cross-designated as a federal officer qualified for assaulting a federal officer during execution of a search warrant. United States v. Butler, 2024 U.S. Dist. LEXIS 36172 (D. Kan. Mar. 1, 2024). The state courts did not … Continue reading
TN: Moving purse from car after PC developed makes it subject to search incident
A passenger can’t defeat an automobile exception search by removing her purse after probable cause developed. Cases in other jurisdictions have held that removal before probable cause developed put it beyond search. State v. Hoffman, 2023 Tenn. Crim. App. LEXIS … Continue reading
LA5: Unenclosed driveways are not part of the curtilage
“Louisiana jurisprudence has indicated that unenclosed driveways, like the driveway in the instant case, are not part of the curtilage with respect to Fourth Amendment cases.” State v. Bourgeois, 2023 La. App. LEXIS 901 ( La. App. 5 Cir May … Continue reading
D.P.R.: Mere presence of FBI at USPO search didn’t make PO ‘stalking horse’
Mere presence of FBI and other law enforcement officers at USPO’s search based on reasonable suspicion did not make the PO a “stalking horse” for the police. United States v. Borges-Sánchez, 2023 U.S. Dist. LEXIS 66017 (D.P.R. Apr. 14, 2023). … Continue reading
S.D.Ill.: Strategy under Strickland for defense to admit SW affidavit into evidence
It was not unreasonable strategy for the defense to admit at trial the affidavit for his search warrant to challenge the quality of the investigation that the search produced nothing and the informant wasn’t reliable. He was acquitted of one … Continue reading
M.D.Ala.: A Franks challenge that appears only to be an attempt to examine the CI fails
Defendant’s Franks challenge fails on recklessness. Moreover, it really is just a desire to cross-examine the CI. “Neal’s request for a Franks hearing also falls short for a separate, independent reason: contrary to the requirements of Franks, Neal’s application for … Continue reading
D.Or.: Ptf stated 1A retaliation claim that SW for his property was because of his speech
Plaintiff stated a claim that execution of a search warrant for his property and writings was retaliation for exercise of First Amendment rights. “Here, when the evidence is viewed in the light most favorable to Plaintiff, a reasonable juror could … Continue reading
D.Minn.: No 4A claim for seizure of legal papers in prison
There is no Fourth Amendment claim for seizure of legal papers when an inmate was moving within a prison. Smith v. Starr, 2022 U.S. Dist. LEXIS 139361 (D. Minn. Aug. 5, 2022). “Following the arrest, however, the agents lawfully knew … Continue reading
CA6: With multiple uses of excessive force, each must be analyzed
“Where ‘a plaintiff claims that excessive force was used multiple times, “the court must segment the incident into its constituent parts and consider the officer’s entitlement to qualified immunity at each step along the way.”’ Wright, 962 F.3d at 865 … Continue reading
DE: Def counsel not ineffective for not forecasting Jones GPS case
“Because the Court will not find trial counsel ineffective for failing to ‘effectively’ raise an issue of first impression [on GPS placement], and because the Court believes that even if he had done so effectively, the issue would not have … Continue reading
N.D.Ind.: 2254(d) “unreasonable application” review considered whether correct case law applied
In this 2254, the argument was that the state court’s application of law violated 2254’s “unreasonable” application standard, but it didn’t. The question was whether Michigan v. Long or Arizona v. Gant applies. “In sum, the State courts’ reliance on … Continue reading
NY4: Minor typos in SW application don’t void the warrant
“We reject defendant’s contention that the search warrant for his cell phones was issued without probable cause. According ‘great deference to the issuing [Justice]’ …, we conclude that Supreme Court properly determined that there was sufficient information in the warrant … Continue reading
WA: HIPAA violation in seizing medical records by SW required their return
The trial court’s order denying return of patient records taken by search warrant from the petitioner youth services provider failed to comply with HIPAA requirements should have been granted. While the records have been returned and the case is otherwise … Continue reading