Archives
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Recent Posts
- E.D.Okla.: Housing authority’s warning of a pest inspection permitted under lease agreement amounts to no REP
- IN: Warrantless pulling on a loose car door panel was with PC and reasonable
- E.D.N.Y.: RS required for non-routine customs cell phone search
- Law360: Open Questions In Unsettled Geofence Warrant Landscape
- S.D.W.Va.: Reasonable during a traffic stop to ask about firearms in the car
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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 (27,400+ on WordPress as of 7/23/24) -
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Fourth Amendment cases,
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Congressional Research Service:
--Electronic Communications Privacy Act (2012)
--Overview of the Electronic Communications Privacy Act (2012)
--Outline of Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012)
--Federal Statutes Governing Wiretapping and Electronic Eavesdropping (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: Plain view, feel, smell
S.D.Ohio: SW for def’s address produced documents related to another address of his which were lawfully seized
“[T]he Court agrees with Moore that papers listing the 3151 Gobel address that were taken from the 3100 Vienna Woods address fall outside the scope of the search warrant’s plain language. … But that does not end the inquiry as … Continue reading
D.Minn.: No need to test a roach for PC, plus def admitted what it was
“During the stop, Mr. Winston himself confirmed that the roaches were marijuana; his possession charge, however, is not based on them. There was thus no reason to test the roaches to confirm the presence of marijuana. The failure on the … Continue reading
D.N.H.: Federal case can rely on state SW
Defense counsel was not ineffective for not challenging the search warrant in his federal case that was issued by a state court judge because it wouldn’t win. Lessard v. United States, 2024 U.S. Dist. LEXIS 180669 (D.N.H. Oct. 3, 2024).* … Continue reading
E.D.Wis.: Vehicle of arrested parolee still subject to parole search when he had no access to it
Even though this parolee was arrested and in custody, the vehicle he was in was still subject to search even though he was out of control of it at the time. His search incident on parole argument fails, too, as … Continue reading
IL: With MJ decrim, smell of MJ no longer PC
With decriminalization of small amounts of marijuana, the smell of marijuana in a car is no longer probable cause to search. People v. Redmond, 2024 IL 129201, 2024 Ill. LEXIS 464 (Sep. 19, 2024). Defendant claimed the gun in the … Continue reading
CA7: SW affiant doesn’t have to explore all of def’s possible defenses in affidavit
When the affiant officer establishes probable cause for a search warrant, he or she isn’t required to explore all the defenses or affirmative defenses the search target may have to put in the affidavit. Here, this arose in the context … Continue reading
OR: Def’s removing a vehicle from impound lot subject to SW supported tampering charge even if the initial seizure was invalid
After a stop, defendant’s truck was seized and he was told that a search warrant would be sought for it. In the impound lot at 3 and 5 am, defendant showed up in the impound lot and was seen on … Continue reading
M.D.Fla.: Fact no MJ was found despite car strongly smelling of it doesn’t mean officer wasn’t credible
The fact a car smells of marijuana but none was found doesn’t mean the officer wasn’t credible. United States v. Wardlow, 2024 U.S. Dist. LEXIS 148359 (M.D. Fla. Aug. 20, 2024):
CA4: Def left car door open in traffic stop and that enabled plain view
Defendant’s stop was valid, and he got out of the car leaving the door open. The officer could see the firearm in the car, and that’s plain view. United States v. Bailey, 2024 U.S. App. LEXIS 20336 (4th Cir. Aug. … Continue reading
E.D.Mich.: Without showing no PC on remainder of affidavit, Franks challenge fails
Defendant’s Franks challenge fails because he doesn’t show that the affidavit does not show probable cause on the remainder. United States v. Chappell, 2024 U.S. Dist. LEXIS 140479 (E.D. Mich. Aug. 7, 2024).* The officers apparently didn’t know that the … Continue reading
FL5: With MMJ, smell of cannabis is no longer RS, conflicting with FL2
“Here, under the totality of the circumstances, Accra did not develop reasonable suspicion of criminal activity because the degree of suspicion that attached to the observed conduct is too insignificant. … The record is devoid, in testimony or otherwise, of … Continue reading
IL: Invited guest in home can refuse contact with police at door without violating law
As an invited guest into the home, defendant had a reasonable expectation of privacy and right to refuse contact with the police at the door without violating the law. People v. Jones, 2024 IL App (1st) 221555, 2024 Ill. App. … Continue reading
E.D.Mo.: A gun seized in plain view can be run to see if it’s stolen
An officer seizing a firearm in plain view off defendant could run it to see if it was stolen. United States v. Reid, 2024 U.S. Dist. LEXIS 130770 (E.D. Mo. June 11, 2024). 2255 petitioner’s IAC claim on Fourth Amendment … Continue reading
CA5: GFE first (was reliance objectively reasonable), PC second
“Warrants are reviewed under a two-part test. In the first step, we determine whether the good-faith exception to the exclusionary rule applies. Under that exception, ‘evidence obtained from [a] search will not be excluded’ even if ‘probable cause for a … Continue reading
W.D.Mo.: Def didn’t show he was driving overdue rented car with anyone’s permission
Defendant had no standing in the rented car he was driving. It was rented by another person, and it had not been timely returned. He didn’t show that he was driving with anyone’s permission. United States v. Manning, 2024 U.S. … Continue reading
IL: Taking the keys to a car can still be only a Terry seizure, not an arrest
Taking the keys to a car can still be only a Terry seizure, not an arrest. Reasonable suspicion not decided below, so remanded. People v. Pellegrino, 2024 IL App (2d) 230343, 2024 Ill. App. LEXIS 1675 (July 18, 2024). Defendant’s … Continue reading
NY2: Stopping car for flashing headlights was properly taken as a possible distress call; but stop was excessive
Defendant’s flashing his high beams at a patrol car was legitimately taken as a likely distress call, but the state failed to prove there was any distress, so the continued questioning was unreasonable. People v. Serrano, 2024 NY Slip Op … Continue reading
MT: RS def was too drunk to drive from description, allegedly crawling to car, then officer talking to him
The citizen informant’s defendant was too drunk to drive because he stumbled and crawled to his car was corroborated by observations and smelling him, so there was at least reasonable suspicion. Defendant’s claim that his bar receipt from inside the … Continue reading