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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: Automobile exception
ABA Journal: Are driverless car searches constitutional?
ABA Journal: Are driverless car searches constitutional? by Adam Banner:
IA: Automobile exception search of glove compartment here was unreasonable
Search of the glove compartment is reasonable to look for evidence of ownership of a car already subject to search, but that wasn’t an issue here because there was no reason to. State v. Marcott, 2022 Iowa App. LEXIS 385 … Continue reading
IN: State const’l arguments have to be raised in trial court first
Defendant’s argument for a change in standing law under the state constitution that he should have the ability to challenge the search of another person’s person and clothing wasn’t raised below, so it’s waived. State v. Allen, 2022 Ind. App. … Continue reading
CA6: Auto exception applies even where driver is detained
A vehicle is mobile for the automobile exception even though the driver is detained. United States v. Washington, 2022 U.S. App. LEXIS 11511 (6th Cir. Apr. 28, 2022). A bald tire in the back of a rental truck was so … Continue reading
CA11: Pressing key fob found during search of home to find car didn’t violate 4A
Pressing the key fob found inside during a search to locate the car outside was reasonable under the automobile exception. United States v. Fortson, 2022 U.S. App. LEXIS 11176 (11th Cir. Apr. 25, 2022). “Defendant’s constitutional rights were not violated … Continue reading
M.D.Pa.: Missing dashcam video of stop and search not shown to be material
The missing dashcam video was not shown to be material. Defendant’s drug paraphernalia was in plain view and it was readily apparent what it was. That led to an automobile exception search. United States v. Griffith, 2022 U.S. Dist. LEXIS … Continue reading
MT: Magistrate’s jurisdiction for SW is over place it could be found, not crime
The geographic limitation on magistrates issuing search warrants applies to the location of the evidence sought, not the location of the crime. State v. Grussing, 2022 MT 76, 2022 Mont. LEXIS 319 (Apr. 12, 2022). The telecommunication records here could … Continue reading
D.Colo.: A vehicle search for MJ that might have been legally possessed under CO law was still potentially a violation of federal law, and federal law controls
The probable cause analysis for arrest and search is the same. Defendant’s car was searched under the automobile exception in Colorado, and a quantity of marijuana was found. Federal law controls here (Virginia v. Moore), not state law and whether … Continue reading
NY3: SW address for 1013 Pleasant second floor permitted search when it was actually 1015 Pleasant
The address of the place to be searched in the warrant was 1013 Pleasant Street, second floor. The second floor, however, was 1015 Pleasant Street, and it was searched. The warrant is not to be view hypertechnically, and it adequately … Continue reading
OR: Questions unrelated to stop unreasonably extended it
“At the outset of the stop, West asked defendant a series of questions: (1) ‘Do you live in this area?’; (2) ‘What are you doing up here?’; (3) ‘Where are you coming from today?’; and (4) if West could see … Continue reading
CA8: Def didn’t show REP in hospital room for plain view seizure of clothing
Defendant did not show that he had a reasonable expectation of privacy in his hospital room where police entered and saw his clothes in plain view and seized them. United States v. Mattox, 2022 U.S. App. LEXIS 5747 (8th Cir. … Continue reading
CA4: Exclusionary rule does not apply to violations of Posse Comitatus Act
An investigation by the DoD Inspector General is an exception to the Posse Comitatus Act. Besides, a violation of the Posse Comitatus Act is not subject to the exclusionary rule. United States v. Vaxima, Inc., 2022 U.S. App. LEXIS 5315 … Continue reading
TN: Smell of drugs during execution of SW permits detaining occupants
Based on the smell of drugs when executing a search warrant, the officers had the authority to detain the occupants. Linsey v. State, 2022 Tenn. Crim. App. LEXIS 79 (Feb. 25, 2022). Defendant’s stop was reasonable. Shots had been reported … Continue reading
IA: PC to search a car is not per se PC to search the driver; more is needed
Probable cause to search a car under the automobile exception does not automatically give probable cause to search the person of the driver. It depends on the facts. State v. Stevens, 2022 Iowa Sup. LEXIS 13 (Feb. 18, 2022). Temporarily … Continue reading
N.D.Ind.: Typo in title of SW of no consequence at all
The fact the search warrant had a typo and was called “search warrant affidavit” is of no moment. It was obviously the warrant. The affidavit also showed plenty of probable cause. Boddie v. Morales, 2022 U.S. Dist. LEXIS 29509 (N.D.Ind. … Continue reading
CA6: There was PC and exigency for search of car even though district court didn’t say “automobile exception”
The smell of marijuana from defendant’s car was probable cause. The district court didn’t say “automobile exception,” but that’s what it meant. United States v. Hall, 2022 U.S. App. LEXIS 2983 (6th Cir. Feb. 2, 2022).* Defendant’s Franks allegation fails … Continue reading
N.D.Okla.: Where there is a SW for a vehicle, def’s automobile exception argument is moot
Defendant argues that the inventory was pretextual to search for evidence of crime, except that there already was probable cause at that point for an automobile exception search. On a later vehicle search, there also was a warrant. Failing to … Continue reading
D.Minn.: Automobile exception applied to RV with engine not on blocks; was capable of movement
Whether the engine of a mobile home was running or not doesn’t matter. It was capable of movement so the search was valid under the automobile exception. “The fact that the motor home had a bathroom and kitchen and looked … Continue reading