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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)
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--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: Inevitable discovery
D.Neb.: SW for property not overbroad and sought in GF; it objectively was a single-family home
The officers did their due diligence before the search warrant and saw only that defendant’s property was a single-family dwelling. That’s how it appeared, that’s what public records said. Therefore, they searched in good faith. United States v. Rice, 2024 … Continue reading
KS: Ptf’s criminal case reversed and dismissed for a 4A violation was not factually innocent for wrongful conviction compensation
Plaintiff had his conviction reversed for an illegal search. On remand, the prosecutor dismissed. He sought compensation for his unlawful conviction. He gets no relief. State law only provides for compensation for the factually innocent, and that’s not this. In … Continue reading
OR: First cell phone SW found unexpected SD card, second SW was tainted by overbreadth of first
Defendant’s cell phone was seized in 2011 and an SD card was unexpectedly found with sexual images of children. When defendant questioned that, a separate search warrant was sought for the SD card. The state does not show inevitable discovery … Continue reading
Cal.4: Defense subpoena for social media records was not improperly issued and enforced; holders of records got to be heard under SCA
Denying the state’s motion to quash a criminal subpoena duces tecum issued to social media companies was not error. Under the Stored Communications Act, the trial court allowed the companies an opportunity to be heard, conducted a sufficient analysis of … Continue reading
CA5: The fact the officer was in an interstate highway drug interdiction team was unavailing because there was a lawful basis for the stop
“Rocha Nevarez’s argument that the stop was unlawful from the start because the trooper was part of a roving drug interdiction team is unavailing. The state trooper witnessed Rocha Nevarez drift over the fog line on eastbound Interstate 20 on … Continue reading
D.N.M.: Summary judgment for defs denied in Torres v. Madrid on remand
On remand in Torres v. Madrid, 141 S. Ct. 989, 209 L.Ed.2d 190 (Mar. 25, 2021), the defendant’s summary judgment motion is denied. Torres v. Madrid, 2024 U.S. Dist. LEXIS 117079 (D.N.M. July 2, 2024).* An out-of-state temporary plate where … Continue reading
MO: Search incident can happen at mobile booking center without going to jail
A search incident can occur even where defendant is at a mobile booking place without being transported to jail. State v. Boehmer, 2024 Mo. App. LEXIS 314 (May 14, 2024). Defendant’s concession in the trial court that the stop and … Continue reading
NM: New crime after alleged illegal seizure not suppressed
Defendant’s new crimes after his alleged illegal seizure are not suppressed. State v. Morgan, 2024 N.M. App. LEXIS 23 (May 13, 2024). Tossing a backpack in flight from the police is abandonment. United States v. Anderson, 2024 U.S. Dist. LEXIS … Continue reading
NC: Lack of findings for denial of motion to suppress precludes review; remanded
After a suppression hearing, the trial court orally denied the motion to suppress after hearing conflicting evidence. The state was to prepare findings and didn’t. After defendant was convicted on that evidence, there was nothing for the appeal. Remanded for … Continue reading
CA10: AOL scanned emails for CP, found some, and forwarded to NCMEC; what NCMEC did did not matter and that’s inevitable discovery
“We conclude that the inevitable discovery exception to exclusion applies, and therefore we need not address whether NCMEC violated the Fourth Amendment by opening Tolbert’s emails and attachments or whether the good faith exception to exclusion would apply. The evidence … 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
D.Ariz.: Federal wildlife officer can make speeding stop in national wildlife refuge
A federal wildlife officer has the authority to make a stop for speeding in a national wildlife refuge under 50 C.F.R. § 27.31(a), (d). [Virginia v. Moore goes unmentioned: The stop would not violate the Fourth Amendment in any event.] … Continue reading
E.D.Wis: Faced with motion to suppress DNA evidence, govt can seek it again
The government obtained DNA and defendant moved to suppress. Then the government sought DNA by warrant again with a new warrant. It is permitted to do so. United States v. Watson, 2023 U.S. Dist. LEXIS 185148 (E.D. Wis. Oct. 16, … Continue reading
CA10: Inevitable discovery applies despite lack of PC in first SW
Even though the initial search warrant was issued without probable cause, inevitable discovery can still apply. United States v. Streett, 2023 U.S. App. LEXIS 26423 (10th Cir. Oct. 5, 2023):
S.D.Ind. Warrant for video surveillance required under Title III
A warrant for CCTV surveillance of the defendant came under the wiretap statute, Title III, and necessity and probable cause was shown. United States v. Jones, 2023 U.S. Dist. LEXIS 178457 (S.D. Ind. Oct. 4, 2023). The totality of information … Continue reading
CA2: CP download 8 mo. before SW at least saved by GFE if no PC
A single download of child pornography eight months before the warrant was sought was at least supported by the good faith exception even if there wasn’t probable cause. United States v. Pratt, 2023 U.S. App. LEXIS 25977 (2d Cir. Oct. … Continue reading
W.D.N.C.: Alleged distinction between smell of MJ and hemp not material here
The distinction between the smell of legal hemp and illegal marijuana wasn’t material where the officer testified he smelled marijuana. United States v. Harris, 2023 U.S. Dist. LEXIS 164723 (W.D.N.C. Sep. 14, 2023).* Defendant was speeding. The stop produced a … Continue reading
CA8: Citizen informant’s reports of def having gun in a wheelchair were reliable and provided PC
Citizen informants’ reports of defendant having a firearm in his wheelchair justified the stop and search on probable cause and exigency. United States v. Cunningham, 2023 U.S. App. LEXIS 14638 (8th Cir. June 13, 2023).* Defendant had standing in another … Continue reading