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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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--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: Automobile exception
W.D.N.C.: Smell of alcohol alone doesn’t permit search for open container
The smell of alcohol alone wasn’t justification for a search of defendant’s car for an open container. United States v. Gibson, 2024 U.S. Dist. LEXIS 70389 (W.D.N.C. Apr. 17, 2024). Petitioner’s claim defense counsel was ineffective for not seeking the … Continue reading
D.P.R.: Indictment for possession of switches to convert handguns to machine guns justified vehicle search when defendant was stopped
Defendant was indicted for possession of conversion devices to make handguns machine guns. That justified search of his car when he was stopped. United States v. Berríos-Aquino, 2024 U.S. Dist. LEXIS 66657 (D.P.R. Apr. 4, 2024). The DEA subpoena for … Continue reading
M.D.La.: Automobile exception doesn’t apply to car parked in owner’s garage
Under Collins, the automobile exception does not apply to a car parked in the owner’s garage. United States v. Dejoie, 2024 U.S. Dist. LEXIS 64270 (M.D. La. Apr. 8, 2024). “The exclusionary rule does not apply to ‘physical evidence that … Continue reading
CA5: PC showing for house in affidavit for SW also supported automobile exception search of car elsewhere
The affidavit for the warrant for defendant’s house also provided nexus to defendant’s car. When it was driven away from the house just before the search, the police decided to stop and search it. That search was valid under the … Continue reading
D.Minn.: Hidden compartment could be searched under automobile exception
Under the automobile exception, a search of a compartment underneath the dashboard paneling was reasonable. United States v. Payton, 2024 U.S. Dist. LEXIS 57065 (D. Minn. Mar. 29, 2024).* The search issues on appeal weren’t the issues in the trial … Continue reading
CA2: District court erred in suppressing a SW executed at 6 am where SW and Rule 41 say 6 am to 10 pm
This search warrant was executed at 6 am, and the district court erred in granting the motion to suppress. “While 6:00 a.m. is the earliest time provided, it cannot be said that executing a warrant in accordance with its text–which … Continue reading
PA: PO could send parolee’s GPS tracking to CID
Defendant was on parole for armed robbery, wearing a GPS tracker. It was reasonable for parole to send his tracking information to a detective investigating him for another robbery. Commonwealth v. Rosendary, 2024 PA Super 51, 2024 Pa. Super. LEXIS … Continue reading
GA: SW for blood draw specifically didn’t mention testing
Where the search warrant for defendant’s blood only permitted drawing the blood and not testing it, testing it required another warrant. State v. De La Paz, 2024 Ga. App. LEXIS 98 (Mar. 8, 2024). Defendant’s conviction was based in part … Continue reading
NJ: Prior knowledge def probably had drugs in car didn’t require SW, and automobile exception still applied
Prior knowledge defendant might have marijuana in his car didn’t require the police to get a search warrant for the car. The automobile exception still applied. [Eight months afterward, NJ legalized marijuana.] State v. Baker, 2024 N.J. Super. LEXIS 24 … Continue reading
D.Utah: Automobile exception permits search under the hood
The automobile exception permits a search under the hood, even if it is not the most likely spot to find drugs and a weapon. Here, a clip was found in the car, and the gun it belonged to under the … Continue reading
The automobile exception is 99 today
The automobile exception is 99 today. Carroll v. United States, 267 U.S. 132 (1925). The offense date: December 15, 1921. The place: Pike 16, 16 miles east of Grand Rapids, Michigan. The car: an Oldsmobile Roadster: The car was likely … Continue reading
E.D.Cal.: Motion for return of property can’t be granted while criminal proceedings still pending
A motion for return of property involved in a criminal case can’t be entertained until all proceedings have concluded. Here, the 2255 has neither been filed nor resolved. United States v. Kindley, 2024 U.S. Dist. LEXIS 31431 (E.D. Cal. Feb. … 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
VA: Automobile exception doesn’t require “ready mobility” and this car was totaled in a wreck
Defendant’s car was totaled in a wreck, and it couldn’t be driven. Nevertheless, the automobile exception applied to it. After Carney, “ready mobility” is no longer required because of the lesser expectation of privacy in a car compared to a … 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
W.D.Pa.: Affidavit for SW failed to show PC, but it wasn’t completely bare bones, so GFE applies
The affidavit averred that defendant came from his house and got in his car manifesting characteristics of somebody who was probably armed, although the officers could see no gun. This is all inference, which isn’t precluded. The affidavit is not … Continue reading
KS: PC for truck extended to its fifth-wheel trailer
With probable cause to search defendant’s truck, that extended to the fifth-wheel trailer it was towing. State v. Crudo, 2024 Kan. LEXIS 4 (Jan. 12, 2024). The “Rodriguez moment” came when the officer asked for consent to search. On the … Continue reading
D.P.R.: Probation search can precede arrest
Defendant’s probation officer was not a “stalking horse” for the police in this probation search. They both had their reasons for the search. Following most of the circuits addressing the issue, the search can precede the arrest. United States v. … Continue reading
C.D.Ill.: No RS car with SC plates and tinted windows violated IL law
There was no reasonable suspicion that the window tinting on a car with South Carolina plates found in Illinois violated Illinois law. United States v. Timms, 2023 U.S. Dist. LEXIS 220195 (C.D. Ill. Dec. 8, 2023).* Plaintiff state prisoner’s § … Continue reading
OH11: Using a flashlight during execution of SW still “plain view”
Using a flashlight during the search of defendant’s home did not negate plain view during execution of the warrant. State v. Washington, 2023-Ohio-4484, 2023 Ohio App. LEXIS 4302 (11th Dist. Dec. 11, 2023). Defendant was a suspect in a fake … Continue reading