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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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--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: Attenuation
IN: Arrival of drug dog while ticket being written didn’t extend stop
The dog arrived at defendant’s traffic stop while the information was being entered into the traffic ticket program in the police car’s computer, so the dog sniff did not prolong the stop under the Fourth Amendment. Separately considering the state … Continue reading
CADC: AE applied to boxes police reasonably believed contained evidence that was being removed from the premises
Defense counsel wasn’t ineffective for not moving to suppress the seizure of boxes of evidence from defendant’s car. It was reasonable for the officers to believe defendant was loading the car to move evidence to hide it when the police … Continue reading
D.Utah: Unlatching but not opening car door to look inside then shutting it was attenuated from dog sniff that gave PC
Officers unlatched the door of a suspicious car parked on an cul-de-sac away from houses, and the car was suspected of a theft from a Sam’s store. The door was shut without looking inside and then a drug dog was … Continue reading
WY: Def’s contradictions of travel compared to car rental agreement and lies about criminal history was RS
Defendant was stopped for following too close in a rental car. It was reasonable for the trooper to suspect defendant rented the car to transport drugs because there were obvious contradictions between the car rental agreement and his travel plans, … Continue reading
D.Minn.: Broad SW in tax investigation on one false return justified breadth of SW because it was likely other taxes were not paid, too
The nature of the probable cause and when it was found was justification for broad search warrant for records in a tax investigation. “But, unlike in Rickert, the investigation in this case began with broader data collected by the IRS … Continue reading
D.N.M.: Def’s car’s impoundment wasn’t justified by community caretaking function or need for inventory
The impoundment of defendant’s car wasn’t justified by either the community caretaking function or need for inventory. Whether the vehicle was even involved in a crime was inconclusive at best. United States v. Trujillo, 2019 U.S. Dist. LEXIS 201024 (D. … Continue reading
IL: Flagrantly unconstitutional arrest here means no attenuation for statement
Defendant’s arrest was flagrantly unconstitutional, and his statement wasn’t attenuated from it. People v. Gutierrez, 2019 IL App (3d) 180405, 2019 Ill. App. LEXIS 890 (Nov. 15, 2019).* Defendant was convicted of possession of a weapon that was in his … Continue reading
FL2: Anonymous calls about a pick-up truck driving slowly around the block in the middle of the night in a residential low crime area wasn’t RS
Officers received two anonymous calls about a dark pickup truck with a loud muffler on a residential street in the middle of the night. Once it stopped in the street for a few seconds and then pulled off and turned … Continue reading
NC: CSLI violation was attenuated because it only helped locate him and then there was a SW in another state
Defendant’s offense was in 2005 and he was originally tried in 2011 and reversed that conviction. On retrial, he filed a motion to suppress a pen register used to locate him in Colorado. CSLI without a warrant was permitted in … Continue reading
CA8: Stop lacked RS, but the finding of a warrant on def was attenuation under Strieff and search incident was valid
Defendant was known to the officer and directed to stay away from a bus shelter. He was found there and the officer accosted him. The district court found reasonable suspicion to support the seizure of a firearm from his person. … Continue reading
NJ: Consent two hours later was attenuated from initial unlawful entry
Defendant was subjected to an entry and sweep. Consent two hours later was voluntary as attenuated. What was found didn’t come from the initial entry. State v. Williams, 2019 N.J. Super. LEXIS 138 (Aug. 29, 2019):
CA5: Assuming def’s suppressed search led to custody and his incriminating jail call, the call was attenuated under Strieff
The district court suppressed one of defendant’s searches that led to his arrest. While in jail, he made incriminating phone calls about the location of drugs. Assuming that the call from the jail was a fruit of the unreasonable search, … Continue reading
CO: Because CO has legalized recreational MJ, use of a drug dog requires PC because a dog sniff uncovers lawful activity
Because Colorado has legalized possession of small amounts of marijuana, admission of possession of it in a car doesn’t permit a drug dog to sniff the car without probable cause to believe there is an illegal amount in the car. … Continue reading
E.D.Ky.: Moving car for more intense automobile exception search was reasonable
A search under the automobile exception properly includes dismantling the car stereo if the officers think there is something potentially there. It was also reasonable to move the car to a different location for a more intense search. United States … Continue reading
D.N.J.: Presentation of fake driver’s license to get car from impound after alleged unlawful seizure was new crime and attenuated
Defendant’s presentation of a fake driver’s licenses to recover his car would not be suppressed. The argument that it is connected to defendant’s alleged unlawful seizure of the car fails because it was attenuated. United States v. Minaya, 2019 U.S. … Continue reading
D.Mont.: After removing tainted information from the SW affidavit, it’s the job of reviewing court to independently evaluate the PC
When removing tainted evidence from the affidavit for the search warrant and retesting it, the issuing judge is not to be a witness. It’s the court’s duty to reevaluate the application for the search warrant on its own. United States … Continue reading
CA9: While there was no basis for def’s stop, his and his passenger’s flight after stopping was an intervening circumstance
The court agrees that there was no basis for defendant’s traffic stop, but, after defendant stopped the car, his passenger bailed out of the car and ran, and then defendant took off and went another two miles before he was … Continue reading
CA8: Arguable probable cause for arrest gives QI
“The totality of the circumstances at the time of the arrest, as described above, were sufficient for Svajgl to believe that Nader had committed or was committing the offense of possessing child pornography.” Arguable probable cause is all that’s required … Continue reading
CA2: Even if SW was unlawful, def’s statement was attenuated
Even if the search warrant was unlawful for failure to specify the apartment to be searched, defendant’s statement was an intervening independent act of free will in disclosing the location of a CD of child pornography. The exclusionary rule would … Continue reading
WA: State attenuation is more narrow than the 4A’s, and here it wasn’t satisfied
The attenuation doctrine applies under the Washington Constitution, but it is more narrowly applied than the Fourth Amendment’s. Here is it not satisfied, and there are no intervening circumstances. State v. Mayfield, 2019 Wash. LEXIS 70 (Feb. 7, 2019):