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- E.D.Ky.: When court can’t tell the dog alerted, motion to suppress granted
- OH1: A malnourished child isn’t exigency for an infant
- E.D.Pa.: Mandamus doesn’t lie to unseal SW papers
- D.Me.: Looking around house when allegedly “freezing” it was an illegal search
- OR: Police listening to attorney-client jail calls because attorney calls not properly segregated leads to dismissal of some counts and setting aside guilty plea
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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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Congressional Research Service:
--Electronic Communications Privacy Act (2012)
--Overview of the 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)
Website design by Wally Waller, Little Rock 
Monthly Archives: February 2019
CA6: Ptf states claim that opening wallet during protective search violated 4A
There were disputed issues of material fact to the arrestee’s claims, including whether the officers exceeded the scope of a lawful protective search by removing the arrestee’s wallet from his pants. King v. United States, 2019 U.S. App. LEXIS 5438 … Continue reading
TN: Misdescription but with correct address of mobile home in SW cured by officer familiar with house being there for search
“Both Detective Norwood, who prepared the affidavit and executed the search warrant, and Investigator Mason, who participated in the execution of the search warrant, were familiar with the location of the mobile home park, and Investigator Mason knew specifically where … Continue reading
AZ: Police relying on binding appellate precedent was subject to GFE
Police following state appellate precedent at the time of defendant’s blood test, later changed, was subject to the good faith exception. State v. Weakland, 2019 Ariz. LEXIS 56 (Feb. 25, 2019). Defendant filed what’s treated as a successor 2255 over … Continue reading
N.D.Tex.: Two defs given standing to challenge seizure of their emails on co-def business’s account
Defendants were charged in a dietary supplement mislabeling conspiracy. On the claim of overseizure, the warrant specified “angeline” but the court concludes anything related to it was seizable as well without violating particularity. Two defendants were given standing to challenge … Continue reading
D.S.D.: SW affidavit merely referred to but not fully incorporated satisfied GFE on particularity
For the good faith exception to apply, it is only necessary that the affidavit be referred to in the warrant to save the warrant from a failure of particularity; it doesn’t need to be completely incorporated by reference. United States … Continue reading
WaPo: Internal memo suggests Little Rock police serve every search warrant with a SWAT team
WaPo: Internal memo suggests Little Rock police serve every search warrant with a SWAT team by Radley Balko: “It is a mandate from the Office of the Chief of Police that the SWAT team execute all search warrants.”
Above the Law: The Constitution Demands A Stronger Check On Government Raids Against Civilians
Above the Law: The Constitution Demands A Stronger Check On Government Raids Against Civilians by Tyler Broker: Despite decreasing crime across the country, the success of alternatives, and widespread criticism, the business of government raids is booming.
M.D.Tenn.: Getting new evidence, def succeeds in a Franks challenge after initial denial of his motion to suppress
On a motion to reconsider denial of a suppression motion with new evidence, defendant succeeds on a Franks challenge. [The court initially had concerns about officer credibility, and this cinches it.] United States v. Anderson, 2019 U.S. Dist. LEXIS 29539 … Continue reading
OH8: Plain view of hit and run vehicle in driveway justified officers’ entry onto curtilage
Defendant raises his search claim via an ineffective assistance of counsel claim: defense counsel should have suppressed the plain view of his vehicle in his driveway partly covered by a blanket. Officers responded to an anonymous tip that defendant’s SUV … Continue reading
TN: CI’s drug information about def’s house “within previous 72 hours” not stale
A CI who’d been in defendant’s house reported that defendant had a quantity of marijuana for sale, and it was reported by the officer in the affidavit to have been within the previous 72 hours. Probable cause was shown for … Continue reading
E.D.Tenn.: Confronting possible trespassers in a house and asking for IDs was reasonable
The officer here confronted trespassers which he suspected might be squatters and drug users. “The Court finds that the officer’s questions and actions were reasonably related to learning the identities of the people on the property, learning whether they were … Continue reading
IN: Walk through of house for non-investigatory reason after unconscious person taken to hospital justified by community caretaking function
Officers responded to a 911 call that a child was unconscious. After the child went to the hospital and the parent went in police vehicle, an officer at the scene did a walk through to insure there was no one … Continue reading
N.D.Cal.: GFE doesn’t apply to protective sweeps which must be objectively reasonable
The good faith exception cannot be applied to an overbroad protective sweep. [Yet, the court finds the exclusionary rule doesn’t apply for other reasons.] United States v. Garcia, 2019 U.S. Dist. LEXIS 27861 (N.D. Cal. Feb. 22, 2019):
Article: Fourth Amendment Standing and the General Rule of Waiver
Fourth Amendment Standing and the General Rule of Waiver by Katerina Kokkas, 2018 U. Chi. Law Forum art. 14 (2019)
Journal Times editorial (Mulwaukee): The Cellebrite and its threat to your constitutional rights
Journal Times editorial (Mulwaukee): The Cellebrite and its threat to your constitutional rights. Racine WI acquires a Cellebrite.
D.Neb.: ATF administrative inspection can occur even though they had PC; SW not required
Just because ATF had reasonable cause doesn’t mean that they needed a search warrant to conduct an administrative inspection of a gun dealer’s records. United States v. Melton, 2018 U.S. Dist. LEXIS 221663 (D. Neb. Dec. 28, 2018):
CA11: Occasional visitor at house had no standing
“Here, Rodriguez’s limited relationship to Weeks’s house does not grant him a reasonable expectation of privacy in it. Rodriguez testified at the suppression hearing that he went to Weeks’s house after being invited, not on his own accord. He also … Continue reading
CA6: State SW can be used to bring a federal prosection
A state search warrant, of course, can be used to initiate a federal prosecution. Dismissal of the state case in favor of federal prosecution is not res judicata. Moreover, the federal government isn’t a party in the state case. United … Continue reading
DE: A probation search that didn’t comply with the probation laws couldn’t be used in a criminal proceeding
A probation search that didn’t comply with the probation laws couldn’t be used in a criminal proceeding. Walker v. State, 2019 Del. LEXIS 88 (Feb. 21, 2019). The record doesn’t show that defendant’s plea was conditional, so there is no … Continue reading