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ABA Journal Web 100, Best Law Blogs (2017); ABA Journal Blawg 100 (2015-16) (discontinued 2018)
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© 2003-23,
online since Feb. 24, 2003 Approx. 350,000 visits (non-robot) since 2012 Approx. 45,000 posts since 2003 (25,700+ on WordPress as of 12/31/22)~~~~~~~~~~~~~~~~~~~~~~~~~~
Fourth Amendment cases,
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Congressional Research Service:
--Electronic Communications Privacy Act (2012)
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--Outline of Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012)
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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"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!”
"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)
Website design by Wally Waller, Little Rock
Category Archives: Neutral and detached magistrate
M.D.Fla.: The fact a USMJ issued SW doesn’t preclude that judge from hearing a motion to suppress
The fact a USMJ issued a search warrant doesn’t preclude that judge from hearing a motion to suppress. United States v. Silva, 2022 U.S. Dist. LEXIS 233243 (M.D. Fla. Dec. 29, 2022). State court’s finding of procedural default on Fourth … Continue reading
M.D.Fla.: 14 years of emails in a complicated tax fraud scheme wasn’t overbroad
Fourteen years worth of emails wasn’t overbroad here. “The case involves a complex tax evasion scheme taking place over many years and across international borders. A wide variety of documents would be relevant to prove this scheme. The warrant in … Continue reading
CA10: State SW issued for DNA in Indian country was still in good faith
A state search warrant for defendant’s DNA for an offense in Indian Country was relied upon in good faith, despite defendant’s contention the warrant was issued by an issuing authority outside the jurisdiction. McGirt doesn’t change this. United States v. … Continue reading
MD: Appointment of state trial judges not 4A violation; they have statewide jurisdiction for SWs
Maryland trial judges have statewide jurisdiction for search warrants. Thus, the assignment of judges in Baltimore by the Chief Judge of the state high court violated nothing under the Fourth Amendment. (Without citing Virginia v. Moore. And, even if it … Continue reading
D.D.C.: DC USMJ can issue SW for iPhone in Texas in domestic terrorism investigation
A USMJ in the District of Columbia has authority to issue a search warrant for an iPhone in Texas in a domestic terrorism investigation tied to the January 6th attack on the Capitol. In the Matter of the Search of … Continue reading
N.D.Ga.: Former AUSA as USMJ not automatically recused from hearing motion to suppress
The USMJ hearing the motion to suppress in this case was earlier an AUSA in the office prosecuting it. She had nothing to do with this case, so recusal is not required. (“Neutral and detached” never mentioned.) United States v. … Continue reading
OH: Plastic baggie caught in bookbag zipper wasn’t “immediately apparent” for plain view
“While executing an arrest warrant, police discovered a closed bookbag with a plastic baggie stuck in its zipper. Without obtaining a search warrant, they opened the bookbag and discovered illegal drugs. The question for us is whether the warrantless search … Continue reading
OH4: Allegation of delay in SW execution until def was present didn’t make it unreasonable
The officers’ delay in executing the search warrant for defendant’s property until he was there so he could be searched, too, was not unreasonable. The warrant had not gone stale by the time it was executed. State v. Alexander, 2022-Ohio-1812, … Continue reading
MT: Magistrate’s jurisdiction for SW is over place it could be found, not crime
The geographic limitation on magistrates issuing search warrants applies to the location of the evidence sought, not the location of the crime. State v. Grussing, 2022 MT 76, 2022 Mont. LEXIS 319 (Apr. 12, 2022). The telecommunication records here could … Continue reading
D.Guam: Issuing magistrate’s later recusal for knowing target’s dad doesn’t show he wasn’t neutral and detached
After search warrant was issued, the issuing magistrate recused from the rest of the matter because defendant’s father was a longstanding employee of the court. There apparently was no relationship with defendant. This did not present a constitutional problem for … Continue reading
MT: Lawyer suspended for telling client to refuse to cooperate in execution of a SW
A lawyer telling his girlfriend-client to refuse to cooperate in DUI blood draw by search warrant is suspended for 30 days. Multiple officers were ultimately involved with a restraint chair brought in before she relented. The lawyer was also convicted … Continue reading
UT: Material change in circumstances found before warrant served should go back to magistrate, but this wasn’t material
Defendant was suspected of attempted video voyeurism, and a search warrant was issued for his gray cell phone. Shortly thereafter, it was discovered that was the wrong phone because it was a white one. Under plain error review, the warrant … Continue reading
SC permits SW issuing judges to testify to PC. But why? It’s a question of law.
Search warrant issuing judges can testify in South Carolina to why they found probable cause. [Why? Probable cause is a question of law everywhere else in the United States.] The omission of some information didn’t change the probable cause analysis, … Continue reading
WV: Family court judge can’t conduct searches for marital property; search and seizure is an executive function
In a judicial discipline case, a family court judge who had a 20 year practice of searching parties’ homes for marital property is censured. Search and seizure is an executive function, not a judicial one. This is just inappropriate. In … Continue reading
PA: No REP in data moving back and forth over a (nearly) public wifi connection where user agreement told users that
Defendant connected to the wifi at his college, and he was aware of the computing access policy that said that he had no Fourth Amendment reasonable expectation of privacy in the information that moved back and forth over his connection. … Continue reading
CA1: Burden on “neutral and detached magistrate” is on defense, and here the showing was speculative
The search warrant issuing magistrate’s husband was a doctor and a potential victim of a DoS cyberattack at a children’s hospital in Boston, allegedly perpetrated for personal reasons. The claim the USMJ was not neutral and detached is speculative. “But … Continue reading
NY3: Issuing magistrate misstating his judicial position not reason to suppress
The issuing magistrate’s misnaming his judicial position (city judge v. acting county judge) didn’t make the search warrant void. People v. Mayhew, 2021 NY Slip Op 01807, 2021 N.Y. App. Div. LEXIS 1924 (3d Dept. Mar. 25, 2021). A “Tag … Continue reading
CA6: Judge issuing SW isn’t barred from conducting trial
The Michigan state courts’ conclusion that the judge who issued a search warrant was not barred from hearing the trial was based on precedent, the judge didn’t remember the search warrant, and it is not an unreasonable application of existing … Continue reading
D.S.D.: Issuing magistrate shown not to be neutral and detached in issuing SW wholly lacking in PC
A tribal judge was not a neutral and detached magistrate, and the good faith exception did not apply. The application for the search warrant was technically deficient in both form (lacking a prosecutor’s signature) and substance (completely lacking probable cause), … Continue reading
CA11: Under GA law, court clerk qualified as “neutral and detached magistrate” for arrest warrants
Plaintiff “raised a section 1983 claim under the Fourth Amendment alleging that McCord did not have legal authority to issue the warrant. The district court concluded that Georgia law authorized McCord to issue warrants. Applying the Supreme Court’s two-part test … Continue reading
