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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: Neutral and detached magistrate
N.D.W.Va.: Factual mistakes in the affidavit for SW didn’t undermine the factual showing; the GFE also applies
There were factual mistakes in the affidavit for search warrant, but it doesn’t undermine the probable cause showing. In any event, the mistakes are in good faith and the good faith exception applies. United States v. Naum, 2019 U.S. Dist. … Continue reading
D.Minn.: USMJ who issues SW doesn’t have to recuse from deciding motion to suppress
The USMJ who issued the search warrant doesn’t need to recuse from deciding on a motion to suppress that warrant. “The Court also concludes that Strieff controls the analysis of Defendant’s challenge to his stop in Rock Island, Illinois. In … Continue reading
GA: Probate judge could issue SW under state law
It wasn’t a violation of state law that a probate judge signed the search warrant in this case. Joyner v. State, 2018 Ga. App. LEXIS 474 (Aug. 3, 2018). Defendant’s DNA was found on bullet casings, and that was added … Continue reading
CA9: Def shows issuing magistrate on arrest warrant wasn’t neutral and detached, but he still loses to GFE
The Ninth Circuit recognizes judicial abandonment under the neutral and detached magistrate requirement, but defendant here still loses. The officers arresting him on the warrant weren’t there when the judicial officer failed to read the papers, and they had no … Continue reading
NY3: Neutral and detached magistrate claim has to be preserved for appeal
Defendant’s claim that the issuing magistrate was not neutral and detached was not preserved for appellate review. And, in any event, it lacks merit because there was plenty of probable cause. People v. Schaefer, 2018 NY Slip Op 05235, 2018 … Continue reading
NM: State’s DNA collection act const’l under King; def has no interest in whether his DNA might end up tested against a cold case was lawfully collected
The state has an interest in collecting DNA from arrestees, and King is followed. Defendant doesn’t make any credible argument why the state constitution should be applied except that he shouldn’t have his DNA compared to that on file from … Continue reading
D.Mass.: USMJ’s spouse’s employment as a doctor at a related institution that was a victim doesn’t make her not neutral and detached when she signs SW
The USMJ here was still neutral and detached. The victim of the crime was a non-profit associated with Harvard. Her husband worked as a doctor for hospital associated with Harvard. That wasn’t a close enough relationship to require recusal. United … Continue reading
MS: Issuing a SW for a person with a similar name a decade earlier didn’t make magistrate not neutral and detached
The fact the issuing judge issued another for a relative a decade earlier didn’t show the judge was not a neutral and detached magistrate. There was probable cause for this search warrant. Donaldson v. State, 2018 Miss. App. LEXIS 303 … Continue reading
UT: The fact an electronic warrant application is acted on quickly doesn’t mean reviewing court should be “skeptical” of PC finding
This case started with a cell phone stolen from a customer in a grocery store. The police pinged the phone and it came back as being located at defendant’s house. Police went there to talk to defendant, and he had … Continue reading
Salt Lake Tribune: Warrants approved in just minutes: Are Utah judges really reading them before signing off?
Salt Lake Tribune: Warrants approved in just minutes: Are Utah judges really reading them before signing off? By Jessica Miller & Aubrey Wieber:
D.S.D.: Issuing magistrate wasn’t a “rubber stamp” for the police by failing to question affiant where PC otherwise shown
The fact the issuing magistrate didn’t question the tribal officer to supplement the affidavit doesn’t make the magistrate a “rubber stamp” for the police conclusion. The affidavit showed probable cause and it was not unreasonable to rely on it. Defendant … Continue reading
M.D.Tenn.: Retired cop and current FOP member was still “neutral and detached” non-lawyer magistrate
The court declines to find a retired police officer acting as a non-lawyer judicial commissioner in issuing search warrants was not neutral and detached. His social media and socialization with police and remaining an FOP member aren’t enough, but maybe … Continue reading
CA10: GFE applies throughout: arguable PC overcomes allegation of lack of neutral detached magistrate, overbreadth, and even staleness
“This case calls for us to apply Leon where the judge who issued the search warrant was arguably not neutral and detached. Although we are unaware of any court applying the good faith exception in such circumstances, it is apparent … Continue reading
N.D.Ga.: Failure to swear affiant doesn’t void SW; GFE applies despite magistrate’s mere alleged cursory review
The issuing magistrate’s failure to swear the affiant officer is a judicial failure, not a law enforcement failure, and it doesn’t void the warrant, and there was probable cause. Also, the magistrate’s apparently cursory review of the affidavit still made … Continue reading
PA: Judge disciplined for not being “neutral and detached” in issuing SW, arrest warrant, and OP at request of friend against husband
Judge who issued a search warrant, arrest warrant, and order of protection on the request of a personal friend against the friend’s spouse was not being neutral and detached, and she was disciplined for violating Canon 2A of the Code … Continue reading
KS: Judge was former ADA who prosecuted def 15 years earlier for fraud; he was “neutral and detached” and could issue SW in murder case unrelated to prior prosecution
(1) The judge issuing the search warrants in this murder case was a former Chief Deputy District Attorney who had prosecuted defendant for financial crimes more than 15 years earlier. That connection was insufficient to show that he was not … Continue reading
CA8: No REP in public areas of a store; telephonic warrant relied on in good faith; tribal judge not shown to not be neutral and detached because she had spoken out on def’s store
Defendant’s convenience store was arguably open, and he didn’t show that it was closed, for an officer to come in and observe synthetic marijuana for sale. He thus did not have a reasonable expectation of privacy. The officer obtained a … Continue reading
E.D.La.: Is a USMJ neutral and detached when the target of the search warrant the judge just signed is allegedly having an affair with the judge’s husband but the defense can’t prove the judge knew?
Is a USMJ neutral and detached when the target of the search warrant the judge just signed is allegedly having an affair with the judge’s husband but the defense can’t prove the judge knew? True or not, that has no … Continue reading