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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: Informant hearsay
W.D.Ark.: Parole search waiver moots lack of PC argument
Defendant was subject to a state warrantless parole search waiver, so the existence of probable cause to support the warrant is moot. United States v. Strickland, 2024 U.S. Dist. LEXIS 73938 (W.D. Ark. Apr. 23, 2024).* “Camara argues that the … Continue reading
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
W.D.Pa.: Affidavit for SW doesn’t have to say CI was reliable when the facts and circumstances alleged showed it
Defendant’s allegations of the police not saying in the warrant affidavit the CI was reliable doesn’t matter because the affidavit for warrant shows otherwise why the CI was credited. There was probable cause. To the extent this would be considered … Continue reading
D.C.Cir.: Telling def to “chill out” not a seizure
“Officer Jones never made such a show of authority; he simply told Hagan, while in uniform and in a ‘conversational tone,’ to ‘chill out.’ … Jones neither told Hagan to stop nor asked him any questions. An approach by a … 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
E.D.N.Y.: Def gets Franks but govt also gets to show justification for protective sweep
There were mistakes in the affidavit that at least gets defendant a Franks hearing. The government, however, will get to provide more information about the justification for a protective sweep which is not confined to the four corners. United States … Continue reading
D.Minn.: Regular CI had “extensive knowledge of street gangs, firearms, and narcotics distribution”; there was PC
The CI had “extensive knowledge of street gangs, firearms, and narcotics distribution,” and he’d been providing information for three months. The officers corroborated what they could. What little omissions there were in the affidavit weren’t material to the finding of … Continue reading
MA: “Any persons present” clause in SW permitted search of one who left before search but hung around
“We conclude that a search warrant authorizing a search of ‘any person present’ allows a search of any person present in the property to be searched during the execution of the search warrant, including persons present during the execution but … Continue reading
W.D.Pa.: Prisoners stated 4A claim for recording of attorney-client calls
Prison inmates stated a claim where their prison calls to their lawyers were recorded by the provider without their knowledge. “ICS’ contention that the recording here was proper because inmates have a lowered expectation of privacy is inapplicable. First, while … Continue reading
CA7: CI identity irrelevant because of controlled buys
This case is about fentanyl on defendant’s person, so the identity of the CI that led police to him is irrelevant under Roviaro. Controlled buys justified his arrest. United States v. Johnson, 2024 U.S. App. LEXIS 4450 (7th Cir. Feb. … Continue reading
DE: Def can’t show vindictive prosecution to get names of those who allegedly provided false information to police for SW of public records
In a case involving a public official accused of misappropriating funds, there was a search warrant for office records. She claimed she was entitled to the names of those who might have provided false information to investigators for the warrant … Continue reading
E.D.Mich.: The SW failed particularity, but the govt proved inevitable discovery
“Defendant seeks to suppress all evidence seized from the subsequent 2018 search in this case because he argues the 2018 warrant was unconstitutionally overbroad. Although this Court concludes the 2018 search warrant violated the Fourth Amendment’s particularity requirement because it … Continue reading
CA10: USMS Fugitive Task Force sufficiently different to not fall under Bivens
The USMS is sufficiently different from the defendants in Bivens to justify Bivens not applying where there was an alleged illegal entry of the Fugitive Task Force. Also, there are alternative administrative remedies. Logsdon v. United States Marshal Serv., 2024 … Continue reading
WI: Drug dog “instinct exception” not applicable here, even if it is ever adopted
The court declines to adopt, at least for now, a drug dog’s “instinct exception” for the dog entering defendant’s car. Other courts have adopted that exception, but factually it doesn’t even apply here because the court finds the dog was … Continue reading
Cal.5: Defective notice of Facebook warrant under CalECPA doesn’t require suppression
Defendant’s Facebook account was accessed by a search warrant issued under CalECPA. The notice provision was not complied with by the state, but the court declines to suppress here. The standard for suppression in CalECPA is the same as for … Continue reading
OH11: Running passenger’s ID through database didn’t violate Rodriguez
With no Ohio cases on point, looking to federal cases, the court concludes that running the passenger’s ID too was incidental to the stop and didn’t unreasonably extend it. State v. Foti, 2024-Ohio-39, 2024 Ohio App. LEXIS 47 (11th Dist. … Continue reading
WY: Def’s girlfriend showed apparent authority to enter their apartment after domestic dispute; Illinois v. Rodriguez redux
Officer’s reasonably relied on defendant’s girlfriend’s apparent authority to enter his apartment. She called 911 about what she described as a domestic assault where he struck her face. When police arrived, she was outside the apartment sitting on the stairs. … Continue reading
NY4: No standing in search of a common basement storage area “not associated with his apartment”
Defendant showed no standing to contest a search of a common basement storage area, “not associated with his apartment.” People v. Ocasio, 2023 NY Slip Op 06623, 2023 N.Y. App. Div. LEXIS 6727 (4th Dept. Dec. 22, 2023). Even if … Continue reading
WA: Def’s first appearance where bail was set under Gerstein not critical stage requiring counsel because bail could be revisited
Defendant’s first appearance where bail was set under Gerstein was not a critical stage requiring counsel because bail could be revisited. State v. Heng, 2023 Wash. LEXIS 603 (Dec. 7, 2023). “The government contends that [the search] was justified both … Continue reading