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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: Probable cause
N.D.Cal.: There’s almost always PC in the contents of a stolen car, such as something of owner’s
There is probable cause to believe that there’s evidence of the crime in a stolen car. “It follows on this record that at a minimum there was also probable cause to believe that evidence of those suspected crimes (either car … Continue reading
MI: With decrim of MJ, smell from a car no longer PC
With decriminalization, the [normal] smell of marijuana coming from a car is no longer probable cause. Also, defendant was seized when he was directed out of his vehicle and a bunch of law enforcement officers were waiting for him. People … Continue reading
D.N.M.: DEA admin. subpoena to doctor’s office for all patient records of 41 was overbroad
A DEA administrative subpoena to a doctor’s office was overbroad where it sought all patient records for 41 patients. The doctor’s objection is sustained. The subpoena needs to be narrower in scope to match that of the investigation. United States … Continue reading
W.D.N.Y.: RS for parole search of house justified by failure to report, curfew and travel violations, and tampering with GPS
A parolee’s “fail[ure] to report to the parole office, staying out past curfew, traveling out of his parole-approved area, and tampering with his GPS monitor” justified a parole search of the home. United States v. Jackson, 2022 U.S. Dist. LEXIS … Continue reading
M.D.Fla.: Cross-examining officer about mistakes in SW affidavit was mentioned in not finding IAC
All defense lawyers have likely done this: Cross-examining an officer over factual mistakes in the search warrant affidavit. This was mentioned in rejecting other parts of defense counsel’s representation at trial as not deficient under Strickland. Neiheisel v. United States, … Continue reading
E.D.N.Y.: A single incident of legal mail being opened in jail doesn’t state a claim
A single incident of legal mail being opened before it got to plaintiff in a county jail doesn’t state a constitutional violation. Braithwaite v. Suffolk Cty. N.Y., 2022 U.S. Dist. LEXIS 204233 (E.D.N.Y. Nov. 9, 2022). There is no reasonable … Continue reading
CA6: Officer’s mistake he’d worked with CI before not shown to be Franks violation
Officer’s mistake in saying he’d worked with CI before that proved false still wasn’t enough to show a Franks violation because it could just be an innocent mistake and not enough to undermine the probable cause. United States v. Duncan, … Continue reading
CA10: Not unreasonable for state court to not apply exclusionary rule in sentencing
Under the unreasonable application standard of 2254, the Utah court did not unreasonably conclude the exclusionary rule would not be applied in the sentencing phase of a criminal trial. Menzies v. Powell, 2022 U.S. App. LEXIS 30789 (10th Cir. Nov. … Continue reading
D.Neb.: Affidavits for SWs are judged by what they contain, not what they lack
Affidavits for search warrants are judged by what they contain, not what they lack. United States v. Cass, 2022 U.S. Dist. LEXIS 195502 (D. Neb. Sep. 30, 2022), adopted, 2022 U.S. Dist. LEXIS 197043 (D.Neb. Oct. 26, 2022). It was … Continue reading
CA6: Search of building next door to def’s building wasn’t reason to suppress def’s search
Officers with a search warrant for 8537 Old Rutledge Pike, Knox County, Tennessee also searched what they believed was an outbuilding at 8533 with a power cord running between them with no indication it was different property. At worst, this … Continue reading
CO: Basement apt could be searched on SW for premises based on CP coming from IP address of premises
“When Dhyne encountered police outside the house, he told them that he (1) rented a separate unit in the basement and (2) used the same IP address as the subscriber. In our view, this second piece of information is critical. … Continue reading
M.D.Pa.: 14 yo kidnapping victim’s 911 call created exigency for def’s cell phone seizure
A 14-year-old kidnapping victim called 911 that she was taken three days earlier, and defendant was finally detained as a result. His phone was seized and a warrant obtained. The seizure of the warrant was reasonable based on all the … Continue reading
OH8: Trial court’s order to permit def to inspect victim’s home which was scene of the crime violated 4A rights of victim
To prepare for trial, defendant sought an inspection of the victim’s home, the scene of the alleged crime of attempted murder. The trial court erred in the balancing the interests involved of the defendant’s right to a fair trial and … Continue reading
TX1: Order to return cell phone in murder investigation was without jurisdiction
The trial court’s order ordering return of a cell phone seized in a murder investigation was void and reversed. “‘Suppression of evidence and return of property are not the same relief.’” Defendant had not yet been indicted, so the trial … Continue reading
PR: SW may be for more than one place on a proper showing, except this one clearly lacked PC
The search warrant here was for three separate locations which is not per se unreasonable. However, the probable cause showing was lacking because it was based on mere suspicion that a firearm was in one of three possible places. The … Continue reading
IL: Smell of burnt MJ in a car in a recreational use state not PC
“We hold that the smell of the burnt cannabis, without any corroborating factors, is not enough to establish probable cause to search the vehicle, and the court did not err in granting the motion to suppress. This finding comports with … Continue reading
