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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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F.R.Crim.P. 41
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Federal Law Enforcement Training Center Resources
FBI Domestic Investigations and Operations Guide (2008) (pdf)
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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: F.R.Crim.P. 41
D.N.H.: Federal case can rely on state SW
Defense counsel was not ineffective for not challenging the search warrant in his federal case that was issued by a state court judge because it wouldn’t win. Lessard v. United States, 2024 U.S. Dist. LEXIS 180669 (D.N.H. Oct. 3, 2024).* … Continue reading
N.D.Tex.: Suppression in forfeiture is Supp.Rule G(8)(a) not Rule 41
The government sought forfeiture of the owner’s cash after it was seized at DFW after a dog sniff on his bag. The owner responded with a motion to suppress under Rule 41, but that doesn’t apply in forfeiture cases. Supplemental … Continue reading
N.D.Ala.: Whether DTF officer could make speeding stops was a reasonable mistake of law under Heien
The task force officer involved allegedly wasn’t authorized to make speeding traffic stops, but this was a reasonable mistake of law under Heien. United States v. Shepherd, 2023 U.S. Dist. LEXIS 181976 (N.D. Ala. Oct. 10, 2023). The bulge in … Continue reading
E.D.Tenn.: Mislabeling SW attachments not worthy of exclusion
Accidental reverse numbering of Attachments A and B didn’t make the search warrant void. United States v. Deakins, 2023 U.S. Dist. LEXIS 60866 (E.D. Tenn. Apr. 6, 2023).* Plaintiff’s claim that the Director of National Intelligence violates the Fourth Amendment … Continue reading
CA10 explains nondomestic FISA surveillance in easy detail
For a detailed explanation of nondomestic FISA activities and phone call surveillance, see United States v. Muhtorov, 2021 U.S. App. LEXIS 36170 (10th Cir. Dec. 8, 2021) (No warrant or court order is required to surveil foreign persons’ conversations outside … Continue reading
CA6: DEA can get state SWs and assist in state investigations, then go federal
DEA officers can get search warrants in federal investigations from state judges for state law violations aiding state officers. That doesn’t violate the Fourth Amendment or Rule 41. And, there is also the good faith exception. United States v. Williams, … Continue reading
N.D.Ga.: Two year delay in searching seized cell phone not unreasonable
Defendant’s cell phone was seized in April 2017 but not finally searched until April 2019. This was still reasonable under Rule 41. United States v. Dixon, 2021 U.S. Dist. LEXIS 95041 (N.D. Ga. Apr. 15, 2021):
D.D.C.: Failure to timely make return of papers under Rule 41 not a 4A violation
Failure to make the return of the warrant to the clerk along with the inventory in violation of Rule 41 requires more than just negligence in failing to do it on time. Where’s the prejudice? The court will not speculate … Continue reading
N.D.Cal.: Failure to produce SW at scene of search doesn’t violate Rule 41 or 4A
Failure to produce a search warrant at the time of the search doesn’t violate the Fourth Amendment or Rule 41. Also, the search was particular. “In our case, a San Francisco Superior Court issued the search warrant, which federal ATF … Continue reading
D.Md.: Local officer assigned to federal task force is a “federal law enforcement officer” for Rule 41
A local officer assigned to an IRS task force is a “federal law enforcement officer” for Rule 41 to seek warrants. Defense counsel wasn’t ineffective for not making an unmeritorious argument. United States v. Jackson, 2020 U.S. Dist. LEXIS 223799 … Continue reading
CA4: Even if Rule 41 was violated by not leaving application for SW at scene it wasn’t prejudicial or intentional
“Here, the district court credited Agent Hayes’ testimony that he left a copy of the face of the warrant and an inventory of the items seized in the search, see Fed. R. Crim. P. 41(f)(1)(C), but that he did not … Continue reading
M.D.Ala.: No 4A right via Rule 41 to have copy of SW at scene; no exclusion for failure to timely leave it
Rule 41 requires that a copy of the search warrant be left at the premises, but it grants no constitutional right to the target of the search to supervise the search. Moreover, failure to leave a copy of the warrant … Continue reading
W.D.Tenn.: Affidavit for SW doesn’t need to support drug dog’s training, too
The affidavit for a search warrant based in part on a dog sniff doesn’t have to also justify the dog’s training to show probable cause. Failure to provide it isn’t a Franks violation. United States v. Tullous, 2019 U.S. Dist. … Continue reading
W.D.Pa.: Retaining new counsel and attempting to reopen suppression hearing under guise of IAC claim rejected
Defendant retained new counsel and moved to reopen his suppression hearing alleging former counsel was ineffective for not raising a better argument. The motion is denied because this claim doesn’t satisfy the standard for reopening. The issue was available and … Continue reading
D.Mass.: Failure to leave a full copy of the SW at scene does not require suppression
“Jones alleges that he entered a guilty plea unknowingly because [defense counsel] Cloherty incorrectly informed him that, after testifying at the suppression hearing that he lived part-time at the apartment where the officers executed the search, he could not testify … Continue reading
CA9: Playpen warrant violated Rule 41(b)(1), but GFE still saved it
A Network Investigative Technique (NIT) warrant (“Playpen” warrant) issued by a magistrate judge in the Eastern District of Virginia exceeded the general territorial scope identified in Fed. R. Crim. P. 41(b)(1) and was thus void ab initio because it authorized … Continue reading
N.D.Tex.: Neither 4A or Rule 41 requires SW be served on def before its execution
“Neither the Fourth Amendment nor Rule 41 requires the executing officer to serve a search warrant on the owner before beginning the search. United States v. Grubbs, 547 U.S. 90, 98-99 (2006). Counsel was not ineffective for failing to file … Continue reading
D.R.I.: Delay in getting cell phone SW as attributed to parties’ settlement discussions
The delay in getting a search warrant for defendant’s cell phones was caused in part by the parties’ negotiations over pre-indictment resolution, and it was reasonable. United States v. Boudreau, 2018 U.S. Dist. LEXIS 48686 (D. R.I. Mar. 24, 2018).* … Continue reading