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ABA Journal Web 100, Best Law Blogs (2017); ABA Journal Blawg 100 (2015-16)
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© 2003-20,
online since Feb. 24, 2003
WebPage Visits: real non-robot hits since 2010; approx. about 30,000 posts since 2003~~~~~~~~~~~~~~~~~~~~~~~~~~
Fourth Amendment cases,
citations, and linksLatest Slip Opinions:
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To search Search and Seizure on Lexis.com $Research Links:
Supreme Court:
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Briefs online (but no amicus briefs)
Oyez Project (NWU)
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General (many free):
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F.R.Crim.P. 41
www.fd.org
Federal Law Enforcement Training Center Resources
FBI Domestic Investigations and Operations Guide (2008) (pdf)
DEA Agents Manual (2002) (download)
DOJ Computer Search Manual (2009) (pdf)
Stringrays (ACLU No. Cal.) (pdf)
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)
--Federal Laws Relating to Cybersecurity: Discussion of Proposed Revisions (2012)
ACLU on privacy
Privacy Foundation
Electronic Frontier Foundation
NACDL’s Domestic Drone Information Center
Electronic Privacy Information Center
Criminal Appeal (post-conviction) (9th Cir.)
Section 1983 Blog"If it was easy, everybody would be doing it. It isn't, and they don't."
—Me“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"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!”
"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."
---Pepé Le Pew
—Johnson v. United States, 333 U.S. 10, 13-14 (1948)
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Category Archives: Burden of proof
OH9: State argued RS but didn’t come forward with proof of it
The state argued there were factors supporting reasonable suspicion, but they didn’t come forward with it. Order granting motion to suppress affirmed. State v. Thomas, 2020-Ohio-3539, 2020 Ohio App. LEXIS 2453 (9th Dist. June 30, 2020). The search warrant was … Continue reading
IL: Arguing only lack of arrest warrant waives lack of PC
Pleading and litigating a motion to suppress in the trial court that the officers lacked an arrest warrant or an exception waived his appellate claim of a lack of probable cause. People v. Montes, 2020 IL App (2d) 180565, 2020 … Continue reading
FL5: Trial court’s order suppressing warrantless black box search affirmed for lack of a record
The trial court granted a motion to suppress the search of defendant’s car’s black box (“event data recorder”). The state on appeal seeks to depart from State v. Worsham, 227 So. 3d 602, 603 (Fla. 4th DCA 2017), that there … Continue reading
D.Minn.: Desire to file a Franks motion doesn’t expand discovery rights
“Generally, the fact that a defendant wishes to seek a Franks hearing ‘does not entitle him or her to additional discovery before the Franks hearing.’” The government stated it has provided discovery required by Rule 16. Defendant’s request for further … Continue reading
IL: Flight from gunshots is not RS
Defendant’s flight into his house on hearing gunshots was not reasonable suspicion to give chase or probable cause to enter the house to arrest him. Anybody would flee gunshots. People v. Craine, 2020 IL App (1st) 163403, 2020 Ill. App. … Continue reading
N.D.W.Va.: Officers’ knowledge of def’s violent past justified patdown during stop
Officer’s prior knowledge of defendant’s violent past and criminal history, with reasonable suspicion, justified his patdown. United States v. South, 2020 U.S. Dist. LEXIS 35208 (N.D. W.Va. Mar. 2, 2020).* Officers had a search warrant for the car defendant was … Continue reading
S.D.W.Va.: No REP in pole camera observations of who came and went from def’s front door
Pole camera observations from the street ended up in a wiretap application. Carpenter provides no relief. The only observations were the comings and goings from the house for which there was no reasonable expectation of privacy. “Because the Defendant has … Continue reading
CO: State can assert new grounds to support search after remand
After a remand, the state is free to raise new grounds to support the search. People v. Tallent, 2020 COA 14, 2020 Colo. App. LEXIS 127 (Jan. 30, 2020). “A bare assertion of authorization from a third party along with … Continue reading
PA: A command to roll down the window with an officer on each side of the car is an investigative detention
Defendant’s stop and one officer on each side and a command to roll down the window tells him that he’s required to talk to the officer. That’s an investigative detention. Commonwealth v. Powell, 2020 Pa. Super. LEXIS 67 (Feb. 3, … Continue reading
W.D.Pa.: To make an effective attack on a SW affidavit, explain yourself and don’t leave it to the court to try to do it for you
Yes, there were inconsistencies in the informant hearsay, but the defendant doesn’t help the court in what that means. “Thus, Defendant’s hearsay attacks fail to draw the court’s attention to any problem in the magistrate judges’ analysis.” There was double … Continue reading
E.D.Ky.: Govt didn’t exceed NCMEC’s private search
NCMEC was a private entity and not a government actor. The government didn’t exceed the private search. United States v. Kendall, 2019 U.S. Dist. LEXIS 192442 (E.D. Ky. Nov. 6, 2019). Defendant had no reasonable expectation of privacy in an … Continue reading
NY2: Def has right of access to SW affidavit to attempt to controvert it
Defendant filed his motion to suppress in the blind because didn’t have access to the affidavit for the search warrant. It was denied without a hearing. Remanded: He gets to see it to try to controvert it. People v. Lambey, … Continue reading
TX10: The search and seizure issue in the trial court needs to be the same as the one presented on appeal or it’s waived
The search and seizure issue in the trial court needs to be the same as the one presented on appeal or it’s waived. “Villareal’s complaint on appeal that the trial court erred in denying Villareal’s motion to suppress as to … Continue reading
WA: Breath for BAC is not subject to search incident doctrine
Defendant was arrested for another reason, and police did a search incident of his breath for DUI. That’s not a proper purpose. City of Vancouver v. Kaufman, 2019 Wash. App. LEXIS 2616 (Oct. 15, 2019). The search warrant appears based … Continue reading
