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Recent Posts
- AR: RS def rented a hotel room was sufficient for search waiver; PC not required
- LA5: No standing to challenge search of shooting victim’s cell phone in def’s possession
- N.D.Okla.: Cell phones possessed by tribal police not subject to return under Rule 41(g)
- E.D.Ark.: Landlord and tenant refused rental property inspection and SW was validly issued and protected privacy interests
- D.D.C.: Judge shopping after denial of SW inappropriate; could have appealed to DJ
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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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Monthly Archives: September 2019
D.Neb.: Advance notice def driving into state doesn’t require SW for car under automobile exception
Defendant concedes officers had probable cause. Just because they had advance notice defendant was coming because of the breadth of their investigation, the automobile exception allowed a vehicle search because of the mobility of the car. Advance notice still doesn’t … Continue reading
N.D.Ga.: Hearsay is admissible in suppression hearings under Rule 104(a)
Hearsay is specifically admissible in suppression hearings [and issuing search warrants] under Rule 104(a). [After all, that’s how informant hearsay and collective knowledge work.] The court credits one officer as to what another told him in the probable cause for … Continue reading
CA9: IRS agent’s need to watch ptf pee during SW was unreasonable; they didn’t do that to her husband when he did
Plaintiff’s claim that an IRS CID investigator had to watch her go to the bathroom just in case she was hiding evidence survived a qualified immunity challenge. The right to bodily privacy was established at the time, and the officer’s … Continue reading
FL5: Car search was justified by search incident; automobile exception finding not even appealed
Defendant’s traffic stop was justified for stopping in the crosswalk before turning on red. The search of the car was found by the trial court with probable cause and justified by the search incident doctrine and the automobile exception. Defendant … Continue reading
OH6: Search claim can’t be raised on post-conviction, but def would lose on merits anyway
Defendant in post-conviction raises seizure of a Western Union document from Kroger. First, that’s defaulted. Second, it’s admissible through the third-party doctrine. State v. Young, 2019-Ohio-3819, 2019 Ohio App. LEXIS 3873 (6th Dist. Sept. 20, 2019).* Defendant’s guilty plea waives … Continue reading
CA6: Seizing ptf out of her home for a psych eval without PC stated claim and overcame QI
Plaintiff stated a claim that she was unreasonably seized in her home without probable cause or a warrant for a psych evaluation. Qualified immunity denied. Rudolph v. Atkinson, 2019 U.S. App. LEXIS 28477 (6th Cir. Sept. 20, 2019)*:
CA2: US citizen jailed without PC as an undocumented immigrant states a FTCA claim
A federal tort claims act case was properly stated for an American citizen plaintiff’s four day detention in an immigration facility as lacking probable cause. Hernandez v. United States, 2019 U.S. App. LEXIS 28081 (2d Cir. Sept. 17, 2019). Defendant … Continue reading
D.Minn.: A car hauler has actual and apparent authority to consent to a car in his possession for transport
The car that was searched was being hauled by a car carrier. By turning over a car to a car hauler, the car hauler has complete possession and actual and apparent authority to consent to a search, and the person … Continue reading
W.D.Ky.: Questions about def having a firearm were unrelated to the basis of the stop; suppression granted
Defendant’s stop was pretextual, but it was with an objective basis. He was leaving a funeral at night with overtinted windows, and the officer couldn’t see inside. He was repeatedly asked about firearms in the car, something unrelated to the … Continue reading
E.D.Mo.: No const’l requirement copy of SW be left at site of search
2255 petitioner’s claims include one that the search should have been suppressed for state officers not leaving a copy of the search warrant at the site of the search. That’s not a constitutional defect. It’s a Rule 41 requirement, but … Continue reading
W.D.Ky.: “Both the issuing judge and the reviewing court should take a totality of the circumstances approach in their review of the affidavit, rather than scrutinize the affidavit line-by-line.”
“Both the issuing judge and the reviewing court should take a totality of the circumstances approach in their review of the affidavit, rather than scrutinize the affidavit line-by-line.” A generalized allegation of “errors” is insufficient to get a Franks hearing. … Continue reading
OH10: While Carpenter is a “new rule,” it’s not been applied in post-conviction proceedings
While Carpenter is a “new rule,” courts on post-conviction haven’t been applying it, and this court does not either. State v. Neil, 2019-Ohio-3793, 2019 Ohio App. LEXIS 3843 (10th Sept. 19, 2019):
E.D.Ky.: Ten months of Facebook seizure was way overbroad, but the govt gets the benefit of the GFE
Knowing that defendant and his confederates talked about drug transactions on Facebook messenger, the limited search warrant for that was based on probable cause, and a message was recovered referring to acquiring a “ball” and it was almost certainly an … Continue reading
W.D.Tenn.: Affidavit for SW doesn’t need to support drug dog’s training, too
The affidavit for a search warrant based in part on a dog sniff doesn’t have to also justify the dog’s training to show probable cause. Failure to provide it isn’t a Franks violation. United States v. Tullous, 2019 U.S. Dist. … Continue reading
CA11: Criminal trial record not fully binding on ptf who was on trial there because incentives to litigate were different
The defendants observed plaintiff’s actions and they saw probable cause to believe he committed trespass. Therefore, the false arrest claim fails. His excessive force claim, however, survives summary judgment. Using the criminal trial testimony wasn’t particularly helpful or controlling because … Continue reading
CA9: Failure to list a cell phone on the inventory sheet doesn’t void its seizure
Defendant’s cell phone was seized from his car when it was impounded after a high speed chase. The fact it was omitted from the inventory sheet does not make its seizure unreasonable. It was ultimately searched with a search warrant. … Continue reading
NC: Failure to raise legality of arrest in trial court precluded appellate review
Defendant was an anti-abortion protestor with a sound system, and he was detained for a noise violation after officers with a 3M sound meter found him over the sound ordinance limit. He was to be arrested for that and he … Continue reading