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- MA: Cell phone call logs don’t require a search warrant
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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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"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
W.D.Ky.: Arrest warrant doesn’t require executing officer to check into PC for it
If there is an arrest warrant, the executing officer doesn’t have to look behind it to determine its validity. Other alleged probable cause for defendant’s stop is immaterial. United States v. Cox, 2022 U.S. Dist. LEXIS 7551 (W.D.Ky. Jan. 14, … Continue reading
MT: Probation search was justified; its overall reasonableness didn’t warrant suppression here
There was reasonable suspicion for the probation search of defendant’s house based on his wife’s report that he was using meth again. The supervisory PO authorized a warrantless entry if necessary. The record is limited as to the reasonableness of … Continue reading
CA2: Def’s possession of multiple cell phones and drugs packaged for street sale created inference more in hotel room
The search of defendant’s person produced multiple cell phones and drugs packaged for street-level sale. There was a fair probability there would be more in his hotel room since drug dealers usually have a base of operations. United States v. … Continue reading
IL: Def did not open door to admit suppressed evidence by lying about it
The exception to the exclusionary rule that suppressed evidence can be used for impeachment purposes did not apply to outright perjury about the finding of a gun. Defendant pro se here stated in opening and in cross that the gun … Continue reading
FL1: Alleged statutory violation for seizing alcohol abusers not subject to any exclusionary rule
An officer’s alleged violation of statutory procedures for dealing with alcohol abusers they encounter is not subject to an exclusionary rule. Nothing in the statute even suggests it. Jones v. State, 2021 Fla. App. LEXIS 15097 (Fla. 1st DCA Nov. … Continue reading
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
OH5: Employer’s call to police def was probably driving drunk was RS
A Home Depot employee was sent home for working under the influence of alcohol. They used a PBT on him, and he was twice the limit. They tried to arrange a ride for him, but he attempted to drive off … Continue reading
CA10: Exclusionary rule doesn’t apply in § 1983 cases
“Plaintiffs maintain that, because Salt Lake City Police violated the Fourth Amendment by unconstitutionally searching and seizing Jerrail Taylor and Adam Thayne, their statements should be excluded in this 42 U.S.C. § 1983 lawsuit. They advance this argument despite the … Continue reading
OH12: Exclusionary rule doesn’t apply to violations of statute unless it also violates 4A
A statutory violation is not subject to suppression unless it also shows a violation of the Constitution. “Suppression is a remedy only for a violation of the Fourth Amendment, which in turn, only requires that a search and seizure be … Continue reading
OH1: Exclusionary rule doesn’t apply in probation revo proceedings
The exclusionary rule does not apply to probation revocation proceedings. (Defendant relies on a 1983 case overruled in 1996.) State v. Richardson, 2021-Ohio-3362, 2021 Ohio App. LEXIS 3302 (1st Dist. Sept. 24, 2021). Defendant’s 2255 reasserts numerous claims, one of … Continue reading
N.D.Cal.: Officer accessing Automated License Plate Reader database not unreasonable search
An Oakland officer’s accessing the local Automated License Plate Reader (ALPR) database was not an illegal search nor a violation of the Fourth Amendment. That information helped to provide information to enable police to apply for a GPS tracking warrant … Continue reading
C.D.Ill.: Failure to execute state SW in 10 days doesn’t automatically trigger exclusionary rule
Failure to execute a state search warrant within 10 days (F.R.Crim.P. 41) where state law says 60 days does not automatically trigger the exclusionary rule. The affidavit for the warrant showed probable cause, and the good faith exception also applies. … Continue reading
N.D.Miss.: No exclusion for knock-and-announce violation
“Engram is simply incorrect that the exclusionary rule may apply when a no-knock warrant application fails to establish justification for a no-knock entry. See United States v. White, 990 F.3d 488, 493 (6th Cir. 2021) (‘Whether this affidavit sufficed to … Continue reading
PA: Exclusionary rule applies to PA probation revocation proceedings
The exclusionary rule applies to probation revocation proceedings in Pennsylvania. Having suppressed in the underlying criminal case, the court should have suppressed on the violation of probation. Commonwealth v. Parson, 2021 PA Super 151, 2021 Pa. Super. LEXIS 487 (July … Continue reading
S.D.Ohio: Def’s arrest under a warrant for murder produced a gun; deterrence no value here
Defendant’s arrest under a warrant for murder also produced a gun, for which he was indicted in federal court. This is not an appropriate case for suppression because there’s no deterrence value. United States v. Gray, 2021 U.S. Dist. LEXIS … Continue reading
D.C.: Illegal patdown without RS caused def’s flight; discard of gun in flight excluded
The patdown of defendant was manifestly unreasonable, and defendant’s flight was thereafter. The exclusionary rule should be applied to this. Johnson v. United States, 2021 D.C. App. LEXIS 187 (July 15, 2021):
TN: AT&T’s requirement cell phone record SWs go through FL office doesn’t deprive court of jurisdiction
The fact AT&T wants cell phone search warrant for a Tennessee cell phone to be served at West Palm Beach, Florida for its convenience does not make the warrant without jurisdiction. The digital information could be accessed from anywhere, but … Continue reading
OH5: Exclusionary rule does not apply in child protection cases
“While this appears to be a case of first impression in Ohio, other states have uniformly held the Fourth Amendment’s exclusionary rule does not apply in child protection cases.” It follows State ex rel. A.R. v. C.R., 1999 UT 43, … Continue reading
WI: With no police misconduct and they “acted by the book” there is no suppression
“In this case, the Sheriff’s Office detectives acted by the book.” The exclusionary rule would not be applied to police officers finding a prior download of data in a police database and using it to connect defendant to this homicide. … Continue reading
D.Kan.: Seizure without RS led to abandonment; suppression granted
Defendant was seized without reasonable suspicion when an officer acting on an informant’s tip approached him with hand on gun telling defendant to raise his hands. Seconds later, he fled, dropping the gun. The court finds an unreasonable seizure precipitated … Continue reading