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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: Staleness
CA6: 4A generally doesn’t apply to sentencing enhancements
“The Fourth Amendment does not apply to sentencing enhancements. … We have recognized a possible exception to this rule—when officers illegally seized the evidence for the very purpose of enhancing the defendant’s sentence—but Wyse makes no such allegation.” United States … Continue reading
TX14: PC for a cell phone requires more than a bare conclusion one was present or involved; no PC here
“A probable cause affidavit supporting a cell phone search must contain evidence of the requisite nexus with more than mere conclusory allegations. For example, the Court of Criminal Appeals recently held that generic, boilerplate language about cell phone use among … Continue reading
D.S.D.: Totality of circumstances showed def likely resided in dwelling for entry on arrest warrant
Based on the totality of circumstances, officers finally had good reason to believe defendant resided in the dwelling he was found in, and the arrest warrant alone was enough to justify entry. United States v. Ulrich, 2022 U.S. Dist. LEXIS … Continue reading
ID: Not telling arrestee reason for arrest in violation of statute not a 4A violation
Failure to notify an arrestee of the reason for his arrest in violation of the statute does not make the arrest violate the Fourth Amendment or state constitution. State v. Lancaster, 2022 Ida. LEXIS 133 (Nov. 1, 2022). There were … Continue reading
N.D.Ind.: Question is not actual reliability of police database, it is reasonableness of reliance on it
“As soon as [the officer] accessed [the database from the police car], he saw an alert suggesting that Defendant was armed. Defendant argues that Davis could not be sure of the accuracy of this information, but that hardly matters. Reasonable … Continue reading
E.D.Mich.: Single telephone call 6 weeks before drug SW was stale
A single telephone call 6 weeks before the search warrant was sought was stale. Nothing in between. “In the context of drug crimes, ‘information goes stale very quickly “because drugs are usually sold and consumed in a prompt fashion.”’” And, … Continue reading
W.D.N.C.: Facebook post of def with backpack full of cash a year earlier wasn’t stale
Reference in a search warrant application to a Facebook post showing defendant buying expensive jewelry with a backpack full of cash at a time when he claimed no taxable income since 2017 was not stale. United States v. Grandy, 2022 … Continue reading
D.S.D.: Time waiting for someone to come to remove car, tow truck or friend, was part of incidents of stop
When the vehicle will be removed because of no licensed person to take control, the time between the calling of the tow truck or a friend or family member to take it away and their arrival is part of the … Continue reading
FL1: SW cured alleged defect in probation search where roommate wasn’t on probation
Defendant, not on probation, lived with two probationers. POs showed up for a probation search, and when they saw the extent of what they found and had a nonprobationer, they got a search warrant for the rest of the house. … Continue reading
OH3: An expert witness is not required on the staleness of CP
There is no requirement of an expert in child pornography investigation to be an affiant to provide information about lack of staleness. Also, this was raised for the first time on appeal. State v. Benedict, 2022-Ohio-3600, 2022 Ohio App. LEXIS … Continue reading
N.D.Cal.: Running passengers’ IDs was outside mission of traffic stop
Running the IDs of the passengers and checking on the probation or parole status was beyond the mission of the traffic stop. Motion to suppress granted. United States v. Taylor, 2022 U.S. Dist. LEXIS 182023 (N.D. Cal. Oct. 4, 2022). … Continue reading
D.Ariz.: Following for 30 miles not a seizure
Following defendant for 30 miles is not a seizure. Finally, there was a consensual encounter. The R&R found it not; the USDJ disagrees. United States v. Ramos, 2022 U.S. Dist. LEXIS 166913 (D. Ariz. Sep. 14, 2022).* 2½ months isn’t … Continue reading
Cal.4th: SW papers for cell site simulators remain under seal because CIs are identified in there
EFF sued for access to search warrant materials that led to use of cell site simulators. The court finds that the protection of named CIs in the papers still needs to be protected, and they remain under seal. Electronic Frontier … Continue reading
M.D.Pa.: Air freshener in a non-smoking rental car factor in RS
“[T]he air freshener in a non-smoking rental car was an early and legitimate basis for suspicion to be aroused. In general, the use of air fresheners is a recognized factor contributing to reasonable suspicion.” United States v. Hawari-Rasulullah, 2022 U.S. … Continue reading
M.D.Pa.: No QI for violation of knock-and-announce; fact question for trial
Defendant officers’ motion for summary judgment on qualified immunity for violating the knock-and-announce rule is denied. The law is well settled for 25 years and there are no blanket exceptions. The rest is fact bound. Murphy v. Grochowski, 2022 U.S. … Continue reading
IA: Smell of MJ smoke 6 days earlier wasn’t stale here
“[W]e conclude that although this was an isolated event and the evidence sought was easily removable, the passage of six days was not significant enough to render the warrant stale.” State v. Euchner, 2022 Iowa App. LEXIS 590 (Aug. 3, … Continue reading
CA11: Absolute prosecutorial immunity doesn’t apply to failure to recall a material witness warrant leading to arrest
Absolute prosecutorial immunity does not apply to failure to recall a material witness warrant that caused a voluntary witness to be arrested later. Kassa v. Fulton Cty., Ga., 2022 U.S. App. LEXIS 19762 (11th Cir. July 18, 2022). There was … Continue reading
S.D.N.Y.: Even illegally seized evidence could be used at sentencing
Defendant’s claim of illegal search is moot for the trial because the government says it’s not using it. It could, however, come up at sentencing. “In United States v. Tejada, the Second Circuit held that ‘[a]bsent a showing that officers … Continue reading
N.D.Ohio: Received CP rarely gets stale
The offense of receiving child pornography rarely gets stale, and here it didn’t. Here it was images from a young girl the defendant sought. United States v. Brackman, 2022 U.S. Dist. LEXIS 118020 (N.D. Ohio July 5, 2022)*: