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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: Probable cause
N.D.Ohio: Drug lab results from controlled buy not required for PC
The government had probable cause for the search warrant for defendant’s house despite the fact that the drugs previously bought from him hadn’t come back from testing at the crime lab. United States v. Clark, 2024 U.S. Dist. LEXIS 24651 … Continue reading
D.Minn.: Neither PC nor RS required to look into a stopped vehicle’s windows
Neither probable cause nor reasonable suspicion required to look into a stopped vehicle’s windows. United States v. Walker, 2024 U.S. Dist. LEXIS 22075 (D. Minn. Feb. 8, 2024). Defendant’s social media account with pictures of him holding guns and recorded … Continue reading
FL2: Suppression under Franks reversed; not material to PC
Defendant established that there were false statements in the affidavit for warrant that ran the full spectrum from negligence to likely intentionality. But probable cause remained, even excluding what was challenged. “While the temptation to advance the prophylactic purpose of … Continue reading
S.D.Ill.: Odor of marijuana coming from a car is PC in this federal circuit even if it’s maybe not in state court anymore because of recreational use
The odor of marijuana coming from a car is probable cause in this circuit even if it’s maybe not be in state court anymore. United States v. Toney, 2024 U.S. Dist. LEXIS 20838 (S.D. Ill. Feb. 6, 2024). Qualified immunity … Continue reading
CA2: A temporal limitation on the SW would have been better, but it’s still cured by GFE
It would have been better for the search warrant to have included a temporal limitation, but that doesn’t have to be decided because the good faith exception is found to apply in any event. United States v. Saint Clair, 2024 … Continue reading
E.D.Cal.: Affidavit for SW for def being a prohibited person for firearms possession doesn’t have to allege interstate commerce nexus
A warrant was issued for defendant’s home in California for proof of travel to the Jan. 6 riot at the Capitol. Officers found firearms and defendant was a prohibited person because of domestic violence orders. On the firearms warrant, it … Continue reading
N.D.Ind.: SW for wrong house was completely lacking in PC, so no GFE
The court previously held there was no probable cause for the search warrant for the address searched, and this opinion is about the good faith exception. The court finds that no reasonably trained officer would have seen probable cause here … Continue reading
D.Minn.: DNA on firearm was a reasonable inference justifying SW for def’s DNA
It was reasonable to infer that defendant’s DNA would be found on a firearm in a car, so the warrant to take his was reasonable. United States v. Tyus, 2023 U.S. Dist. LEXIS 234639 (D. Minn. Dec. 8, 2023), adopted, … Continue reading
CA2: Where PC and GFE found by District Court, both have to be argued on appeal or waiver occurs
The district court found probable cause and the good faith exception applied. On appeal, he argued only probable cause. The alternative ground of good faith was thus waived and the court can affirm. United States v. McGregor, 2024 U.S. App. … Continue reading
D.Nev.: No standing where alleged Turo car rental couldn’t be shown by driver
The court finds defendant lacked standing in a car he claims to have rented through Turo from the owner. The innocent driver of car stolen by someone else could have standing, but he doesn’t even get there. The rental couldn’t … Continue reading
CA8: Failure to mention CI’s convictions or payments for information wasn’t material
The warrant affiant’s failure to mention the CI was paid or had convictions wasn’t material to change the outcome of the probable cause determination. With CIs, things like that can be assumed. United States v. Riaski, 2024 U.S. App. LEXIS … Continue reading
KS: Search of def’s purse when she was passed out likely from ODing was reasonable
The emergency aid exception justified the search of defendant’s purse. She was passed out on a convenience store bathroom floor with drug paraphernalia around her. It was reasonable to look in her purse to see what drug it might have … Continue reading
CA8: Affiant officer’s belief that criminals brag about crimes on social media allows cell phone search in a gun case
“We conclude the affidavit adequately established probable cause that Ivey’s cell phone would contain evidence of a firearms offense. Officers found the phone in Ivey’s possession while he was located in a vehicle with a gun under his seat. The … Continue reading
CA5 (en banc): Arrest of “citizen journalist” under a statute never declared unconstitutional was with QI
“Villarreal fails to satisfy her burden on either [qualified immunity] prong. This is not a case about a ‘citizen journalist just asking questions.’ That clever but misleading phrase cannot relieve this court of our obligation to evaluate Villarreal’s conduct against … Continue reading
CA2: Reason to believe ptf was inside justified entry with arrest warrant under Payton
Officers had an arrest warrant for plaintiff, and that gave them the ability to enter his home to look for him under Payton when they had a reasonable belief he was inside. Engelmayer v. Engelmayer, 2024 U.S. App. LEXIS 1617 … Continue reading
N.D.Ga.: Use of cell phone cash app to facilitate PPP fraud justified SW for phone
Use of a cell phone cash app to facilitate spending PPP loan fraud justified warrant for phone. United States v. Foster, 2024 U.S. Dist. LEXIS 11369 (N.D. Ga. Jan. 22, 2024). Codefendant’s case: United States v. Baptiste, 2024 U.S. Dist. … Continue reading
D.D.C.: 1/6 geofence warrant was for phones within the crime scene and was reasonable
The 1/6 Capitol geofence warrant was issued with probable cause and was specific, limited to those within the Capitol or on the restricted grounds, not just near it. United States v. Easterday, 2024 U.S. Dist. LEXIS 8978 (D.D.C. Jan. 18, … Continue reading
CA8: Police dog’s accidental biting of guest of officer not 4A excessive force
Police dog’s charging and biting a guest of the officer was accidental, not excessive force. Fourth Amendment claim dismissed. Whitworth v. Kling, 2024 U.S. App. LEXIS 1039 (8th Cir. Jan. 17, 2024) (The court cited a 1999 Arkansas case that … Continue reading
N.D.Tex.: Rule 41 doesn’t apply to forfeiture actions; Supplemental Rule G(8)(a) does
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