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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: Exclusionary rule
D.N.M.: There is no exclusionary rule under Rule 41(g)
An action for return of property under Rule 41(g) is not a motion to suppress and does not invoke any exclusionary rule. Eastman v. United States, 2022 U.S. Dist. LEXIS 188438 (D.N.M. Oct. 14, 2022):
OH: Exclusionary rule does not apply to statutory violations, here a parole search
Defendant signed a consent to parole search form, but the statute says it has to be on reasonable grounds. Here, even if the statute was violated, the exclusionary rule applies to constitutional violations, not statutory ones. State v. Campbell, 2022-Ohio-3626, … Continue reading
OH10: Window tint violation justified impoundment and inventory, even though discretionary
Under the inventory policy, the police had the discretion to impound vehicles with excessive window tint, even though they did not apply impoundment uniformly. State v. Hall-Johnson, 2022-Ohio-3512, 2022 Ohio App. LEXIS 3308 (10th Dist. Sep. 30, 2022). An investigation … Continue reading
D.V.I.: 911 call from a child was exigency to go to the back door too
A 911 call from a child on the premises was exigency for going to the door. When the door was open, the police could see through to the backyard that there were marijuana plants growing there. The initial exigency, however, … Continue reading
MA: Def not prejudiced by third party’s response to SW
A third party in possession of Medicaid records was served with a search warrant, and appellant complains of the procedural nature of the third party’s response. [Aside from no standing,] Appellant doesn’t even attempt to show that the exclusionary rule … Continue reading
MI: Even if using a drone to take pictures in zoning dispute violated 4A, exclusionary rule does not apply, and the action below was remedial not punitive
The use of a drone to take pictures by a city contractor in case over a zoning ordinance violation probably did not violate any Fourth Amendment right. But even if it did, the exclusionary rule should not apply in this … Continue reading
W.D.N.C.: Not 4A violation to order def to keep hands visible
It is not a violation of the Fourth Amendment to tell the defendant to keep his hands visible and not reach in the car during a stop. If a person can be ordered out of the car for officer safety, … Continue reading
S.D.N.Y.: Even illegally seized evidence could be used at sentencing
Defendant’s claim of illegal search is moot for the trial because the government says it’s not using it. It could, however, come up at sentencing. “In United States v. Tejada, the Second Circuit held that ‘[a]bsent a showing that officers … Continue reading
S.D.Ga.: Exclusionary rule wouldn’t apply to equal protection challenge to stop
A subjective intent (Whren) argument not presented to the USMJ is rejected. Even if the court got to the merits, the exclusionary rule wouldn’t apply to an equal protection challenge. United States v. Lewis, 2022 U.S. Dist. LEXIS 115137 (S.D. … Continue reading
M.D.Ga.: Dropping cell phone in flight from wrecked car is abandonment
A series of alleged crimes and other actions of the defendant was probable cause to search defendant’s phone found in his car. [There is no nexus to the crimes mentioned in the opinion, so I submit it’s wrong on this … Continue reading
E.D.Pa.: Stop without RS still leads to PC and no exclusion
The stop was without reasonable suspicion, but the court finds the subsequent search incident based on probable cause from the stop reasonable and refuses to apply the exclusionary rule. United States v. Harris, 2022 U.S. Dist. LEXIS 97002 (E.D.Pa. May … Continue reading
OK: Exclusionary rule applies in civil cases under state constitution
The exclusionary rule applies to Oklahoma City’s effort to enforce a warrantless entry to seize and forfeit birds in apparent distress. Oklahoma applies the exclusionary rule in most civil cases under its state constitutional provision against unreasonable searches. There was … Continue reading
MI directs its CoA to consider application of exclusionary rule in zoning case
The Michigan Supreme Court remanded Long Lake Twp. v. Maxon, 2021 Mich. App. LEXIS 1819 (Mar. 18, 2021) (posted here) to determine below whether the exclusionary rule should apply in a zoning case. Long Lake Twp. v. Maxon, 2022 Mich. … Continue reading
N.D.Ga.: Pro forma objection to R&R doesn’t articulate argument, so it’s waived
Defendant didn’t fairly articulate his objections to the R&R, so his objection is waived. United States v. Hill, 2022 U.S. Dist. LEXIS 83707 (N.D.Ga. May 9, 2022). There was probable cause for this search authorization, and the good faith exception … Continue reading
CA10: “[N]o exclusionary rule for evidence gained through … entrapment”
“[T]here is no exclusionary rule for evidence gained through conduct later deemed to be entrapment.” United States v. Christian, 754 Fed. Appx. 747, 750 (10th Cir. 2018). United States v. Christian, 2022 U.S. App. LEXIS 12255 (10th Cir. May 6, … Continue reading
OH12: Any error in SW return has no effect on search
Any error in the search warrant return does not affect the search itself. Therefore, it can’t form a basis for suppression. Defendant also disclaimed any interest in the property at the time of the search. State v. McClendon, 2022-Ohio-1441, 2022 … Continue reading
Cal.: Exclusionary rule does not apply in child dependency litigation
The exclusionary rule does not apply in child dependency litigation. In re Christopher L., 2022 Cal. LEXIS 2313 (Apr. 25, 2022) (recognizing rule). “Hecke is correct that Detective Compton did not provide details of BSC’s criminal history or a description … Continue reading
D.Me.: Settled law at the time means exclusionary rule not applied, even if the law was later changing
Officers relied on settled law in this circuit that the search incident was valid. Maybe it wouldn’t be later, but it was at the time. The exclusionary rule should not be applied under Davis. “Given the similarity of these two … Continue reading