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- MA: Cell phone call logs don’t require a search warrant
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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
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
E.D.Mich.: Officers’ versions of arrest and search show two valid versions of why it was valid
The two officers involved in defendant’s stop and search of his person and car had somewhat different versions of what happened. Under either, the search of his person and car were both reasonable. Defendant had no DL which was an … Continue reading
OR: Exigency for automobile exception has to exist at the time of search; telephonic warrant preferred
Oregon Supreme Court holds that the exigency for an automobile exception search under the state constitution must actually exist at the time of the search. The per se rule from 1986’s Brown case is overruled. Technological changes and statute since … Continue reading
N.D.Ohio: Def’s psychotherapist reported he was viewing CP; 4A does not prohibit using it in SW application
The psychotherapist-patient privilege does not bar use of a report from defendant’s psychotherapist to law enforcement that defendant admitted viewing child pornography. The psychotherapist discussed with others and concluded that a report was necessary. Whatever the privilege for trial, it … Continue reading
PA: With MMJ, smell of MJ from a car alone is not PC for a vehicle search
Pennsylvania is a medical marijuana state. “Like the Superior Court, we hold that the smell of marijuana may be a factor, but not a stand-alone one, in determining whether the totality of the circumstances established probable cause to permit a … Continue reading
W.D.La.: Where the search was valid under the automobile exception, the officer’s subjective assessment is irrelevant
“Here, the facts known to Broussard at the time of the search—Dyson’s prior arrest for the illegal possession of a firearm and drugs, and the smell of marijuana emanating from the vehicle during the present stop—support a Terry pat-down search … Continue reading
TX4: Def abandoned his totaled car when it went to auto auction; black box search didn’t need a warrant
Defendant’s car was totaled in a wreck. He never came to get it or the stuff from it. His insurance company sent it to an auto auction for disposal. The police went there and retrieved the black box information without … Continue reading
Cal.3: Smell of burnt MJ from car not PC in California
The smell of burnt marijuana coming from a car in California isn’t probable cause. Blakes v. Superior Court, 2021 Cal. App. LEXIS 1057 (3d Dist. Nov. 24, 2021) (published Dec. 16, 2021). Officers had probable cause for the automobile exception … Continue reading
D.D.C.: New 4A issues in reply brief are normally waived
After a motion to suppress was filed and briefed and the government responded, new issues in the reply brief are usually treated as waived. Here, however, the court will let him proceed on those issues and he can file a … Continue reading
E.D.Mich.: When SW arrived for house, def’s vehicle parked two doors down could be searched with PC under automobile exception
Officers had a search warrant for defendant’s house that included vehicles that were parked or came there. Defendant’s vehicle was parked two houses down from his house. The search of the vehicle was justified by the automobile exception. United States … Continue reading
E.D.Mich.: Finding drugs on person during traffic custodial arrest permits vehicle search
Defendant’s stop was valid because the LPN was expired. While that proved to be untrue, the officer also learned early on the car was uninsured. With defendant arrested, the officer searched his person finding cocaine. That authorized a search of … Continue reading
LA1: Subjective beliefs of officer irrelevant when PC exists
The trial court is reversed. There was probable cause for defendant’s stop. “Under the law, ‘the subjective beliefs or expectations of the detaining officer’ are irrelevant.” State v. Lee, 2021 La. App. LEXIS 1840 (La. App. 1 Cir. Dec. 6, … Continue reading
N.D.Ohio: Officer doesn’t have to defer to mere chance motorist has CCL before seizing firearm in car
When a firearm was seen in defendant’s car, the officer did not have to even consider whether he was had a concealed carry license to seize it. Ferguson v. United States, 2021 U.S. Dist. LEXIS 229451 (N.D.Ohio Dec. 1, 2021); … Continue reading
LA1: SW not required under automobile exception
Defendant was involved in a struggle with another in a car, and he reached for the console to open it, and a gun was briefly visible. When he was finally arrested, a warrant was not required for search of the … Continue reading
GA: Probationer was unreasonably detained as suspect in a crime where he didn’t match
The state failed in its burden of proof that defendant was lawfully stopped and then detained as a possible suspect in a crime even though he was a probationer. His clothing didn’t match. It was prolonged way past its justification. … Continue reading
NY3: Tossing backpack from one’s window into the window of the abandoned house next door to avoid seizure is a waiver of REP
When the police came to his house, defendant threw a backpack with a sawed-off rifle from his second floor window into a window of the house next door. He claimed that house was his uncle’s, but it was unsecured and … Continue reading
CA11: Bag dropped to feet when def arrested couldn’t be searched incident to arrest; no safety concern
Officers accosted defendant to arrest him, and he dropped a paper bag. It could not seriously be argued that the bag contained a weapon. Moreover, the government did not argue abandonment. The district court erred in not granting the motion … Continue reading
S.D.Miss.: Plain view of alleged drug residue was apparently false and a “comedy of errors”
Plastic wrappers or containers in cars are ubiquitous. The officer [almost obviously] made up a claim there was drug residue in a wrapper. First it was ecstacy, then it was cocaine. It’s all on bodycam. This was a “comedy of … Continue reading
N.D.Ind.: The Rodriguez question is: Did the use of the dog prolong the stop
“The answer to this question doesn’t hinge on ‘whether the dog sniff occurs before or after the officer issues a ticket’ but whether the dog sniff ‘prolongs’ the stop. [Rodriguez] at 357. The answer today is undoubtedly no. Deputy Samuelson, … Continue reading