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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© 2003-21,
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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FDsys, many district courts, other federal courts
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To search Search and Seizure on Lexis.com $Research Links:
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Briefs online (but no amicus briefs)
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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
CA4: Def had burden on GFE, and he failed
Assuming without deciding the probable cause question, defendant fails to prove that the good faith exception should not be applied. United States v. Parrish, 2021 U.S. App. LEXIS 10533 (4th Cir. Apr. 13, 2021). The officer had probable cause to … Continue reading
W.D.Pa.: Def can show standing from govt’s papers, including affidavit for SW, and its case at suppression hearing
The defendant has the burden of showing standing, if raised, but he doesn’t have to testify to do it. The affidavit for the warrant here said the place to be searched was defendant’s and that’s enough. Other cases in this … Continue reading
KY: State failed to call witnesses to show RS for extending stop for drug dog
The state failed to prove its reasonable suspicion for extending the stop. The officer alone detaining at the scene for the drug dog didn’t have the evidence. Giles v. Commonwealth, 2021 Ky. App. LEXIS 45 (Mar. 26, 2021):
WY: Mere citation to state constitution without cogent argument for different treatment is waiver
Citation alone to the state constitution’s search and seizure without cogent argument for differentiating Fourth Amendment cases is waiver. The totality of information before the officer in the traffic stop justified it. Elmore v. State, 2021 Wyo. LEXIS 48 (Mar. … Continue reading
D.Conn.: When govt raises an exception to warrant requirement, def must rebut in briefing, but cell phone seizure shown unjustified
In response to defendant’s motion to suppress, the government argued search incident, which the defense didn’t rebut in the papers. Motion denied in part. Defendant’s cell phone seizure is suppressed, however, because the government didn’t show justification for its seizure. … Continue reading
CA5: District court’s failure to credit def’s claim of possessory interest in car is affirmed
Defendant was a passenger in a car in which he claimed he had a possessory interest because it belonged to his domestic partner and he claimed to have paid $2000 toward the car. The district court didn’t credit that testimony … Continue reading
AR: Reasonableness of a probation search has to be presented to revocation court first
Defendant didn’t argue in the revocation court that the probation search was unreasonable, so it can’t be argued on appeal. Mathis v. State, 2021 Ark. App. 49, 2021 Ark. App. LEXIS 57 (Feb. 3, 2021). Defendant was on release and … Continue reading
N.D.Ill.: Arrest warrant doesn’t permit a search on entry
Defendant’s arrest warrant permitted entry to arrest him but not to search. A protective sweep was still permitted, if justified. Here no. But the search warrant for the cell phone was not tainted by the initial illegality, and the exclusionary … Continue reading
D.V.I.: Failure to put on proof at suppression hearing leads to show cause order to defense
Defendant filed a motion to suppress a statement and a search. At the hearing, however, the search wasn’t challenged. Defendant has to show cause why that part of the motion should not be denied. United States v. Henry, 2021 U.S. … Continue reading
NE: State failed in its burden of proof on inventory; the defense has no duty to clear up confusion in the proof
The state carried the burden, and it failed to prove that the inventory of defendant’s vehicle followed standardized procedure or was reasonable. The defense had no burden to clear up any evidentiary confusion because the state had the burden. State … Continue reading
D.Colo.: Failure to call the officers with enough information to show collective knowledge as witnesses made govt fail in its burden of proof
The government failed to prove collective knowledge at the hearing on the motion to suppress. A critical witness to collective knowledge wasn’t called. United States v. De La Rosa-Calderon, 2021 U.S. Dist. LEXIS 3378 (D. Colo. Jan. 7, 2021):
CA6: Def waived Franks argument on appeal by only arguing PC below
Defendant’s Franks argument on appeal fails because the motion to suppress was based on a lack of probable cause and didn’t direct the court to any alleged false statement under Franks. United States v. Baker, 2021 U.S. App. LEXIS 113 … Continue reading
OH2: Post-conviction 4A claim of lack of PC for SW fails for failure to include affidavit in record
Defendant’s post-conviction claim that defense counsel was ineffective for not challenging the validity of the search warrant in his case fails. He has to show he would have prevailed on the search issue, but the affidavit for the warrant isn’t … Continue reading
W.D.N.C.: Indian tribes not subject to 4A claims
“Plaintiff cannot bring a claim based on a Fourth or Fourteenth Amendment violation against an Indian tribe like the Defendant. Oviatt v. Reynolds, 733 F. App’x 929, 933 (10th Cir. 2018) (dismissing Fourth Amendment claim against an Indian tribe ‘because … Continue reading
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
