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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© 2003-21,
online since Feb. 24, 2003
WebPage Visits: real non-robot hits since 2010; approx. about 35,000 posts since 2003~~~~~~~~~~~~~~~~~~~~~~~~~~
Fourth Amendment cases,
citations, and linksLatest Slip Opinions:
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FDsys, many district courts, other federal courts
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State courts (and some USDC opinions)
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To search Search and Seizure on Lexis.com $Research Links:
Supreme Court:
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Solicitor General's site
SCOTUSreport
Briefs online (but no amicus briefs)
Oyez Project (NWU)
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General (many free):
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Lexis.com $
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F.R.Crim.P. 41
www.fd.org
Federal Law Enforcement Training Center Resources
FBI Domestic Investigations and Operations Guide (2008) (pdf)
DEA Agents Manual (2002) (download)
DOJ Computer Search Manual (2009) (pdf)
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
Privacy Foundation
Electronic Frontier Foundation
NACDL’s Domestic Drone Information Center
Electronic Privacy Information Center
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"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: Ineffective assistance
E.D.Mich.: Listing inventory on police report and not inventory sheet not unreasonable
“Therefore, the officers’ decision to list the items recovered during the inventory search in the Incident Report and not on the Impound Report does not invalidate the inventory search.” United States v. Morris, 2021 U.S. Dist. LEXIS 182946 (E.D.Mich. Sept. … Continue reading
D.Conn.: Handcuffing a concealed carry permit holder was without RS and unreasonable
“In light of the uncontested fact that Plaintiff presented his pistol permit to Defendant before or at the time he disclosed that he was in possession of a pistol and the absence of any other indicia that Plaintiff was otherwise … Continue reading
CA10: Order to get out of car doesn’t unreasonably extend stop
The officer’s order for defendant to get out of the car was reasonable and did not unreasonably prolong the stop. United States v. Malone, 2021 U.S. App. LEXIS 26136 (10th Cir. Aug. 30, 2021). “While Fisk brings his assignment of … Continue reading
CA8: Some evidence of nexus saves SW under GFE
Under the good faith exception, executing officers are entitled to rely on the magistrate judge’s nexus finding with some actual basis they can reasonably rely on, even if it technically might have been wrong. United States v. Barnes, 2021 U.S. … Continue reading
DC: PO’s turning over supervisee’s GPS tracking to police not unreasonable
Defendant on probation in D.C. was supervised by the Court Supervision and Offender Services Agency. After he violated terms of probation, he was placed on GPS monitoring. It was not unreasonable for CSOSA to share that information with D.C. Metro … Continue reading
W.D.N.Y.: Govt’s failure to raise GFE before USMJ is waiver
Government waived the good faith exception by not raising it before the USMJ. United States v. Stearns, 2021 U.S. Dist. LEXIS 154919 (W.D.N.Y. Aug. 17, 2021). The trial court didn’t make sufficient findings on whether a handgun in plain view … Continue reading
NE: No REP in cell in pretrial detention for evidence of witness tampering; also, SW obtained
The state got a search warrant for a pretrial detainee’s county jail cell for evidence of witness tampering. The search was not institutional security. The trial court suppressed, but the court of appeals reversed: there is no reasonable expectation of … Continue reading
CA8: Three controlled buys via cell phone was PC for wiretap
Nexus and probable cause for a cell phone wiretap is the same standard as under the Fourth Amendment. “The CS performed three controlled buys by communicating with the cellphone number that was wiretapped. Further, the CS identified the number as … Continue reading
N.D.N.Y.: Stone also bars arrest claims
Lack of probable cause for an arrest is also not cognizable in habeas under Stone v. Powell. Shortell v. Kickbush, 2021 U.S. Dist. LEXIS 146938 (N.D.N.Y. Aug. 5, 2021). Defendant’s 2255 search and seizure IAC claim is really just an … Continue reading
E.D.Mo.: Flight is part of the RS calculus
Defendant fled from a police stop, and he wasn’t seized until the police laid hands on him. The hunch he was carrying a gun was correct. “First, as Officer Nash was attempting to exit his marked police car to engage … Continue reading
E.D.Wis.: Citing forfeiture seizure statute in SW application and warrant doesn’t require forfeiture, too
The government sought a search warrant under Rule 41 and also cited the forfeiture seizure statute, 18 U.S.C. § 983. Failure to seek forfeiture doesn’t void the search. United States v. Palma, 2021 U.S. Dist. LEXIS 137870 (E.D.Wis. May 27, … 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
NY2: Collective knowledge requires proof of the knowledge
The state relied on the fellow officer rule. “Although there were references to eavesdropping warrants that had been obtained for the defendant’s and her codefendant’s phones, the People inexplicably failed to offer any evidence at the hearing to establish that … Continue reading
CA5: Motion for return of property erroneously dismissed; pet’r may have no other remedy
The district court erred in dismissing appellant’s petition for return of documents under Rule 41(g) seized under a warrant with alleged attorney-client privileged materials. If no charges are brought, there will be no motion to suppress. Harbor Healthcare Sys., L.P. … Continue reading
D.Ariz.: 4A IAC claim fails for failing to show how outcome would change and because 4A wasn’t violated
“Movant argues that the warrantless search and seizure of the victim’s blood-stained clothing violated his Fourth Amendment rights and that his trial counsel’s failure to challenge the search and seizure was ineffective assistance because ‘there exists more than a reasonable … Continue reading
AK: Checking IDs of passengers in traffic stop requires RS under AK Constitution
In a traffic stop, obtaining the passenger’s ID to check for warrants without reasonable suspicion violates the state constitution. Perozzo v. State, 2021 Alas. App. LEXIS 87 (July 9, 2021). Defendant’s ineffective assistance of counsel claim for failure to object … Continue reading
S.D.W.Va.: Def unaware he was blocked in his car wasn’t “seized”
“Inasmuch as Mr. Mitchem was unaware that his car was blocked given his somnambulant state, the mere blocking of his vehicle is of no Fourth Amendment consequence.” United States v. Mitchem, 2021 U.S. Dist. LEXIS 118388 (S.D. W.Va. June 25, … Continue reading
CA2: DL address is “reason to believe” where def lives for entry on arrest warrant
Defendant’s DL had the address where the police entered on an arrest warrant, and it led to a plain view. The DL address was “reason to believe” it was his address. United States v. Johnson, 2021 U.S. App. LEXIS 18491 … Continue reading
OH10: Not challenging SW was strategic choice in self-defense case
Defense counsel wasn’t ineffective for not objecting to the search warrant because it would contradict his claim of self-defense. State v. Messenger, 2021-Ohio-2044, 2021 Ohio App. LEXIS 2017 (10th Dist. June 17, 2021) (see § 60.19) The issue here is … Continue reading
