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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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Fourth Amendment cases,
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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: Particularity
D.Conn.: This drug case SW was broad but the attachments narrowed it enough
“The warrant here, although broad, did not lack particularity in terms of data to be searched. The warrant incorporated two attachments relevant to this inquiry. See Groh v. Ramirez, 540 U.S. 551, 557-58 (2004) (establishing that a court may construe … Continue reading
PA: Cell phone SW has to protect privacy, but an internet-based crime will permit a broad search
Because of the nature of the invasion into privacy, a cell phone search has to be as limited as the search of a home, and the probable cause defines the scope of the search. All they had for starters was … Continue reading
CA10: Cell phone search for evidence of sex trafficking could be broad; this was particular enough
The cell phone search warrant in this sex trafficking case allowed search of everything on the phone that could contain evidence of sex trafficking as defined under Oklahoma law. It was not overboard because the information sought could have taken … Continue reading
NY Queens: Cell phone SW with no time restriction overbroad
The search warrant for defendant’s cell phone sought everything on it when a limited time period was at issue. The law is settled in New York. “Here, the search warrant issued allows for an essentially unrestrained search of defendant’s cell … Continue reading
CA2: SW for premises was particular despite claim part of it was multifamily
The search warrant application didn’t mention that the premises was actually a multifamily dwelling. It appeared not to be, and the IP information for a child pornography search warrant came back to that address as a whole. “Regardless of whether … Continue reading
TX5: SW for firearms in a vehicle permitted search and seizure of GSR although not specified
Officers had a search warrant for defendant’s car for firearms, but they also searched for gunshot residue which was not particularly described. Still, searching for GSR is reasonable on execution of the warrant. Brown v. State, 2021 Tex. App. LEXIS … Continue reading
D.Nev.: Important case: SW affidavit didn’t support the breadth of cell phone search
Defendant was arrested for sex trafficking child in a reverse sting operation, and the court finds the search warrant for his telephone lacked probable cause to search it for child pornography. “That Lofstead may have attempted to purchase commercial sex … Continue reading
WV: Witness recantation doesn’t per se eliminate PC; it is a factor to consider
A witness’s recantation is a factor for the prosecutor to consider in deciding whether to pursue charges. It does not mean that all probable cause is gone. Fall v. Ames, 2021 W. Va. LEXIS 640 (Nov. 19, 2021). The particularity … Continue reading
D.Kan.: Word processing error in affidavit didn’t make a Franks issue
The reference to another unknown person in the search warrant affidavit appears to be a word processing mistake and not a material false statement for Franks purposes. Denied. United States v. Moss, 2021 U.S. Dist. LEXIS 221619 (D.Kan. Nov. 17, … Continue reading
ABA: Litigation: Overbroad Searches and Seizures: Google Customer Data Stored Outside of Gmail
ABA: Litigation: Overbroad Searches and Seizures: Google Customer Data Stored Outside of Gmail, 48 Litigation 49 (No. 1, Oct. 1, 2021) by Mark Mermelstein, Sharon Frase, and Alison Epperson (“Tech giant customer data can contain most of a user’s electronic … Continue reading
S.D.Tex.: Particularity and GFE are lacking; hearing set on motion to suppress
Neither the affidavit nor search warrant apparently sufficiently limit the search. The court has difficulty applying the good faith exception without a hearing on the motion to suppress. United States v. Mokbel, 2021 U.S. Dist. LEXIS 191789 (S.D.Tex. Oct. 5, … Continue reading
D.Alaska: SW affidavit accidentally in the jury room during deliberations wasn’t looked at so no error
The search warrant affidavit for the search warrant for defendant’s backpack accidentally went to the jury room in deliberations with the backpack. The court finds that this wasn’t error because 10 of the 12 jurors said they didn’t know that … Continue reading
NE: Time limited call and CSLI records were particular
The misstatements in the affidavit for the warrant here was negligence at worst, and that bars suppression. The affidavit for the warrant for defendant’s phone provided at least a “modicum” of information supporting probable cause. So, even assuming a lack … Continue reading
D.Minn.: Particularity in social media SWs is still evolving, and reliance on SW here was reasonable
Here, a Facebook warrant that allegedly lacked particularity was still close enough for the good faith exception. The law of particularity in social media warrants is still evolving, and it was reasonable for the officer to rely on the issuing … Continue reading
TN: Merely citing to the particularity requirement not effective appellate argument without context
Defendant’s particularity argument fails for lack of cogent argument: “Defendant’s first question regarding the probable cause requirement has already been answered, and Defendant offers no evidence or argument in support of his apparent challenge to the particularity of the warrant. … Continue reading
DE: “Any and all data” on a cell phone was a general warrant
A cell phone search warrant for any and all data without restriction was not particular and amounted to a general warrant. The use of the product of the search was not harmless beyond a reasonable doubt. Taylor v. State, No. … Continue reading
CA4: Dog sniff before traffic ticket finished was reasonable
Dog sniff occurred here during the initial ordinary incidents of the traffic stop and writing a ticket so it didn’t extend the stop. United States v. Junkins, 2021 U.S. App. LEXIS 24174 (4th Cir. Aug. 13, 2021). Defendant’s vehicle was … Continue reading
CA8: SW for CP didn’t include “cell phone” in “electronic devices,” but GFE covers it
The search warrant here was for electronic devices that could hold child pornography, and it failed to specifically mention defendant’s cell phone. The good faith exception, however, overcame this omission of particularity. United States v. Pospisil, 2021 U.S. App. LEXIS … Continue reading
E.D.N.Y.: Any RS was dispelled before stop
The officer may have had reasonable suspicion as he approached the defendant, but, as he got closer, suspicion was dispelled. No reasonable suspicion for the stop. Motion to suppress granted. United States v. Chavous, 2021 U.S. Dist. LEXIS 131326 (E.D. … Continue reading