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- E.D.Tex.: Corporate Transparency Act enjoined, but 4A claim as yet unresolved
- Hell Gate: 83 Percent of ShotSpotter Alerts Might Not Have Been Gunfire at All
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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: Probable cause
S.D.W.Va.: Reasonable during a traffic stop to ask about firearms in the car
The traffic stop was reasonable, and it was also reasonable for the officer to just ask whether there was a gun in the car for safety reasons because carrying in legal in this state. United States v. Martin, 2024 U.S. … Continue reading
S.D.Ohio: SW for def’s address produced documents related to another address of his which were lawfully seized
“[T]he Court agrees with Moore that papers listing the 3151 Gobel address that were taken from the 3100 Vienna Woods address fall outside the scope of the search warrant’s plain language. … But that does not end the inquiry as … Continue reading
D.Minn.: No need to test a roach for PC, plus def admitted what it was
“During the stop, Mr. Winston himself confirmed that the roaches were marijuana; his possession charge, however, is not based on them. There was thus no reason to test the roaches to confirm the presence of marijuana. The failure on the … Continue reading
W.D.Pa.: A state court dispute over return of seized property held by feds heading toward contempt was removable to federal court
Defendant’s property was seized under a state search warrant. Defendant sought return in state court, but it had been transferred to federal officers. They refused return. Contempt was sought against the federal officers in state court and this was removable … Continue reading
M.D.Pa.: No constitutional requirement to get arrest warrant for misdemeanor committed in officer’s presence
There is no constitutional requirement for an officer to get an arrest warrant to arrest based on a misdemeanor committed in his presence. The common law says the officer can. United States v. Alvarez, 2024 U.S. Dist. LEXIS 172609 (M.D. … Continue reading
D.Minn.: Even if stop was without RS, eluding police gave it
Even if there was no reasonable suspicion for defendant’s stop, his new offense of eluding the police justified it. United States v. Denton, 2024 U.S. Dist. LEXIS 170669 (D. Minn. Sep. 23, 2024).* The affidavit for this warrant shows probable … Continue reading
IL: With MJ decrim, smell of MJ no longer PC
With decriminalization of small amounts of marijuana, the smell of marijuana in a car is no longer probable cause to search. People v. Redmond, 2024 IL 129201, 2024 Ill. LEXIS 464 (Sep. 19, 2024). See techdirt: Court Reminds Cops That … Continue reading
OR: The burden on whether the affidavit was with the warrant at the search is on defendant
When the affidavit satisfies particularity but the defendant alleges the warrant doesn’t, he has the burden of proving that both were not attached to each other or at the scene of the search for guidance. State v. Goode, 335 Or. … Continue reading
CA9: Inventory of backpack of just released suspect was still reasonable
Defendant was arrested on suspicion of murder, and his backpack was put in the police car. His backpack was briefly searched and nothing was found. He was released after questioning, but his backpack was subjected to a later inventory which … Continue reading
CA6: Electronic devices were “property under his control” subject to search while on supervised release
Defendant’s electronic devices were “property under his control” subject to search while on supervised release. United States v. Ramadan, 2024 U.S. App. LEXIS 23276 (6th Cir. Sep. 11, 2024). Plaintiff pleads an unreasonable strip search in prison, but the necessary … Continue reading
N.D.Tex.: PC and GFE questions were close, and that’s good enough
The search warrant survives both a finding of probable cause and application of the good faith exception: “Here, the Court agrees with Defendant that the affidavit at issue presents a ‘close call’ as to whether the good-faith exception applies and … Continue reading
TN: Def opened door to admit suppressed cell phone evidence by asking the one question too many
Defendant successfully kept out cell phone tracking records for lack of probable cause. “However, during trial, based on defense counsel’s question of whether there was any ‘physical evidence’ connecting Defendant to the case, the trial court ruled that Defendant opened … Continue reading
W.D.Wash.: When a document is discussed in a SW affidavit, including the document isn’t required
When a written document is involved and discussed in a search warrant affidavit, including the document is not constitutionally required. Misstating it might make a Franks claim. United States v. Shetty, 2024 U.S. Dist. LEXIS 161863 (W.D. Wash. Sep. 9, … Continue reading
M.D.Pa.: Def’s Franks challenge fails for being vague as to what was inadequate and even which warrants were being challenged
“First, on a fundamental level, Bressi’s Franks request is insufficiently specific for this Court to reconstruct the warrants. Bressi does not point to a specific search warrant he claims was obtained through Agent O’Malley’s intentional or reckless disregard for the … Continue reading
CA8: No individualized PC to arrest all protestors in a group
Probable cause as to a group of people involved in a protest sweeps too broadly. Ybarra requires probable cause as to individuals. It was not reasonable to believe everyone in this particular group was violating the law. They couldn’t be … Continue reading
S.D.Ind.: Handwritten alterations to SW were authorized by issuing magistrate and were valid
Handwritten alterations on the search warrant to match the same subjects as the affidavit were authorized by the issuing magistrate and were valid. And, even if this made it overbroad, it was still valid under the good faith exception. United … Continue reading
N.D.Ind.: Slightly different trial testimony doesn’t make a Franks violation; it’s what the officer knew at the time
Slightly different trial testimony here didn’t support a Franks challenge. The officer swore to what he knew when he applied for the warrant, and that wasn’t false. United States v. Bates, 2024 U.S. Dist. LEXIS 156420 (N.D. Ind. Aug. 30, … Continue reading
E.D.Tenn.: A lab report used to support PC doesn’t have to be included in the affidavit
“As to the omissions cited by defendant, the Court concludes that they do not detract from the probable cause analysis, as such elaborate specificity is not required. See Gates, 462 U.S. at 235 (explaining that search warrant affidavits ‘are normally … Continue reading
D.Minn.: Warrantless ion scan of car door handle was reasonable
A DNA ion scan of a car door handle was reasonable, relying on United States v. Jones, 2024 WL 1810220 (D. Minn. Apr. 25, 2024), finding no reasonable expectation of privacy in an ion scan on an apartment door from … Continue reading
NM: Def’s new crime after arrest not to be excluded
“We agree with the Court of Appeals that the new crime exception to the exclusionary rule applies and we agree with its analysis of the issue. The exclusionary rule applies only where its deterrence benefits outweigh its societal costs. Strieff, … Continue reading