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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: Protective sweep
CA10: Uncertainty def was alone inside justified protective sweep
The consenter’s uncertainty that defendant was alone in the apartment justified a protective sweep, and ultimately she consented and the evidence supports that conclusion. United States v. Phyfier, 2021 U.S. App. LEXIS 133 (11th Cir. Jan. 5, 2021). [Even so, … Continue reading
TX3: No “sua sponte duty” in trial court to suppress evidence that the defense didn’t move to suppress
The trial court has no “sua sponte duty” to suppress evidence that the defense didn’t move to suppress. Chila v. State, 2020 Tex. App. LEXIS 10219 (Tex. App. – Austin Dec. 23, 2020). Police along with USMs entered defendant’s place … Continue reading
CA8: DV order of protection and def’s seeking his firearms was PC for SW
Defendant was under a DV order of protection and repeatedly attempted to recover firearms from the police department, and that was probable cause for a warrant for his house. United States v. Bachler, 2020 U.S. App. LEXIS 39772 (8th Cir. … Continue reading
W.D.La.: Protective sweep for AK-47 was reasonable on knock-and-talk for weapon, denial of entry, and smelling MJ; one officer was to leave for SW
Police properly conducted a protective sweep for an AK-47 after a knock-and-talk did not gain entry. Police had an anonymous source, and defendant was an alleged felon in possession, and they went for a knock-and-talk. Defendant refused to consent, and … Continue reading
TX7: Def had no standing to challenge the seizure of an aborted fetus’s DNA
Defendant had no standing to challenge the seizure of an aborted fetus’s DNA that connected him to the pregnancy. Sharp v. State, 2020 Tex. App. LEXIS 9025 (Tex. App. – Amarillo Nov. 17, 2020). Officers had an arrest warrant for … Continue reading
NE: Search of passenger’s purse by consent for passenger compartment was based on reasonable belief it was passenger’s
The driver consented to a search of the car defendant was a passenger in. The passenger’s purse was reasonably believed to be the driver’s for consent purposes, even though it was on her side. When it was opened and her … Continue reading
NJ: Protective sweep of house for gun inside was unreasonable where defendant was arrested outside
Protective sweep of house for gun inside was unreasonable where defendant was arrested outside. State v. Radel, 2020 N.J. Super. LEXIS 222 (Oct. 20, 2020):
CA1: Gunshot from within while waiting for SW justified entry and sweep
Police froze and surrounded defendant’s home while they sought a search warrant. While they were waiting, a gunshot came from within, so they entered in response. The government satisfied inevitable discovery even though this protective sweep ended up in the … Continue reading
E.D.N.C.: Removing protective sweep from affidavit for SW still leaves PC
While protective sweep was unreasonable, excising it from the affidavit for search warrant, still leaves probable cause. United States v. Lee, 2020 U.S. Dist. LEXIS 171270 (E.D. N.C. Sept. 18, 2020). “In sum, counsel reasonably could have concluded that movant … Continue reading
CA11: Plain view supported SW; protective sweep essentially moot
Defendant’s arrest in a motel room resulted in a plain view of a distinctive sneaker that was probably worn in a robbery. That supported a search warrant. Defendant’s protective sweep argument wasn’t timely raised, but it would lose anyway because … Continue reading
M.D.Pa.: Govt’s justification for protective sweep or exigency based entry were speculative so motion to suppress granted
The government contention a protective sweep or exigent circumstances justified the entry was speculative and lacked foundation. Motion to suppress granted. United States v. Lara-Mejia, 2020 U.S. Dist. LEXIS 156946 (M.D. Pa. Aug. 28, 2020). The automobile exception doesn’t apply … Continue reading
TX14: Arrest outside a house can justify a protective sweep inside
An arrest outside a house, depending on the circumstances, can justify a protective sweep as much as an arrest inside. Defendant also claimed that a secondary protective sweep was unreasonably intense. Even if it was, it doesn’t affect the search … Continue reading
W.D.Mo.: Def’s arrest at door in underwear permitted protective sweep before getting his clothes
Defendant was arrested in his house on a cold and dreary day. He answered the door in his underwear. Officers were permitted to conduct a protective sweep before getting his clothing for transport because at least one other person expected … Continue reading
DC: Entry on arrest warrant was limited to protective sweep, but here it was a full search
U.S. Marshals entered defendant’s home on an arrest warrant and, instead of just securing it, they succeeded in searching it, too. The search violated the Fourth Amendment and is suppressed. Green v. United States, 2020 D.C. App. LEXIS 240 (July … Continue reading
CA5: Protective sweep reasonable after def first barricaded himself and then surrendered
A protective sweep was justified on defendant’s arrest after he’d barricaded himself inside and then gave up. United States v. Hernandez, 2020 U.S. App. LEXIS 17027 (5th Cir. May 28, 2020). Petitioner isn’t entitled to a writ of mandamus for … Continue reading
MO: Radio report of def being potentially armed and dangerous plus unusually cluttered car justified protective weapons search
Defendant was stopped for expired tags. The officer noticed the inside of the vehicle was unusually cluttered. He got the DL and went back to his patrol car to call it in. “After the report came back that Lindsay was … Continue reading
D.N.J.: Protective sweep of house after arrest outside was unjustified; it was a search for a gun
Defendant’s arrest outside his house near his front door did not justify a protective sweep of his house. “Indeed, this Court finds that the marshals’ broad search of the Westberry residence was conducted specifically to find the firearm. … Because … Continue reading
CA9: Protective sweep of house after medical emergency at front door unjustified
Officers responded to a medical emergency at the entryway of defendant’s house. They ended up conducting a protective sweep for which there was no justification whatsoever. The firearm found in the protective sweep is suppressed. United States v. Gonzalez-Martin, 2020 … Continue reading