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- CO: Opening car door to aid drug dog sniff was a search
- CA6: Impeaching def’s trial testimony about the search of his property using his proffer agreement was prejudicial, but harmless
- D.S.D.: Tribal officers governed by 4A and Indian Civil Rights Act
- CA9: Knock-and-announce failure doesn’t lead to suppression
- D.Minn.: Rehashing 4A argument to USMJ isn’t a proper objection to the R&R
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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 -
© 2003-25,
online since Feb. 24, 2003 Approx. 500,000 visits (non-robot) since 2012 Approx. 47,000 posts since 2003 (30,000+ on WordPress as of 12/31/24) -
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Congressional Research Service:
--Electronic Communications Privacy Act (2012)
--Overview of the 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: Qualified immunity
AR: Questions about legality of search before jury properly excluded under 403
Where the trial court denied the pretrial motion to suppress, cross-examination of the officer about the legality of the search was properly denied on objection by the state as potentially misleading to the jury. Damon v. State, 2025 Ark. App. … Continue reading
E.D.Mich.: Civil Franks violation was “well established” and QI denied
Plaintiff was arrested for child sexual abuse. The child recanted, and the prosecutor involved was disbarred for misconduct in this case. Plaintiff’s claim for a Franks violation was well established by 1978, and qualified immunity denied. MacMaster v. Busacca, 2025 … Continue reading
D.Mont.: Search incident doctrine didn’t apply where car was searched when def was transported to ER
Officers lacked reasonable suspicion for a probation search of defendant’s vehicle. In addition, its search couldn’t be justified by search incident when he was already transported to the hospital before the search occurred. United States v. Heafner, 2025 U.S. Dist. … Continue reading
VI: Multiple falsities about CI made successful Franks challenge
Defendant succeeded in his Franks challenge on misleading statements about the CI as an observer rather than participant in the crime and the affidavit lacked corroborating investigative facts and omitted information about W1’s lies. All this was material to the … Continue reading
D.Ariz.: USPO can turn phone seized in supervised release over to FBI
It was not improper for the PO to turn defendant’s phone over to the FBI to search it when it was already lawfully seized. “This is not a stalking horse case.” The delay was not unreasonable. United States v. Fuller, … Continue reading
E.D.Tex.: Suppression not remedy for knock-and-announce violation
Suppression is not the remedy for a knock-and-announce violation. United States v. Bello, 2024 U.S. Dist. LEXIS 236255 (E.D. Tex. Dec. 19, 2024),* adopted, 2025 U.S. Dist. LEXIS 2332 (E.D. Tex. Jan. 7, 2025).* Defendant had no standing to question … Continue reading
CA7: Concession of PC in USDC bars this claim
“On appeal, Birkley does not contest the district court’s reasons for dismissing the case, including its rationale that Birkley failed to state a claim because he conceded at his preliminary hearing that the police had probable cause for their actions. … Continue reading
N.D.Cal.: Violation of CalECPA has nothing to do with federal rights
Violation of CalECPA has nothing to do with federal rights. United States v. Wenger, 2025 U.S. Dist. LEXIS 1331 (N.D. Cal. Jan. 3, 2025). At the time of the warrant, it was not established that the accused had to have … Continue reading
TN: Def’s yelling “police” and turning back from door justified immediate entry on fear of destruction of evidence
When police knocked at defendant’s door, he yelled “police” and turned back inside the house, they feared to warn others or destroy evidence. “Here, based upon the totality of the circumstances, the record shows that the officer had a reasonable … Continue reading
W.D.Va.: No REP prison visit with nonlawyer wouldn’t be videorecorded on bodycam
Plaintiff had no reasonable expectation of privacy in his prison visit with his brother being recorded on body camera of a nearby correctional officer. Saunders v. Vilbrandt, 2025 U.S. Dist. LEXIS 989 (W.D. Va. Jan. 2, 2025).* “To the extent … Continue reading
OR: 3 am look at def’s car in driveway was unreasonable under state constitution
Officers approached defendant’s house by the driveway and came to the “back door” which was also a way into the house for ordinary visitors. The look at his car at 3 am exceeded implied consent to enter. “[A]t three o’clock … Continue reading
CA5: Where 4A claim undecided below, it doesn’t form basis for stay
In the appeal of Texas Top Cop Shop, Inc. v. Garland, posted here, the Fifth Circuit doesn’t rely on the undecided Fourth Amendment claim in deciding on a stay. 2024 U.S. App. LEXIS 32565 (5th Cir. Dec. 23, 2024).* The … Continue reading
NC: Drug dog alert on def’s car isn’t RS to frisk his person
A drug dog alert on defendant’s car isn’t reasonable suspicion to frisk his person. State v. Stollings, 2024 N.C. App. LEXIS 1006 (Dec. 17, 2024). Defense counsel wasn’t ineffective for not further challenging the search warrant issued after an entry … Continue reading
CA6: 4A IAC claim requires a showing petitioner would win on the merits of search claim
“And if Derringer intended to argue that counsel should have moved to suppress the cell phone videos, he did not identify any basis for challenging the validity of the search warrant that resulted in the seizure of the cell phone … Continue reading
OH8: Failure to attempt to distinguish contrary settled cases is waiver of argument
“In similar situations to the second transaction, federal courts have upheld the validity of the warrant to search a drug dealer’s premises based on the ‘common sense’ inference that drugs would be found in the home, essentially finding that evidence … Continue reading
NY3: “Common sense” that a drug dealer might have evidence on his cell phone isn’t PC
Just because defendant was a suspected drug dealer, there wasn’t probable cause for searching his cell phone. “While [officer] Bruno recounted that there was a quantity of drugs found in the motel room, along with the two phones, he did … Continue reading
CA6: Arrest based on unreliable eyewitness violates clearly established law
“Our precedent holds that it was clearly established that an officer may not arrest an individual based solely on an eyewitness account that is untruthful or unreliable. That is exactly what happened here when Officer Wieber learned that the prior … Continue reading
CA8: Pro se def’s standby counsel not ineffective at suppression hearing; not counsel’s role
Defendant chose to go pro se at the suppression hearing, grudgingly accepting standby counsel. After the motion to suppress was denied, he claimed ineffective assistance by standby counsel for not doing more. But that’s not standby counsel’s role. United States … Continue reading
W.D.Mo.: Judge actually participating in seizure denied absolute immunity
A state judge is denied absolute immunity for allegedly participating in a seizure in the courthouse rather than just ordering it. Rockett ex rel. His Minor Children v. Eighmy, 2024 U.S. Dist. LEXIS 205918 (W.D. Mo. Nov. 13, 2024). A … Continue reading