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Recent Posts
- OH2: Police responding to report of shot dog who heard an animal had exigency to enter the curtilage
- CA4: Court instructing that the legality of searches were questions for the court wasn’t error
- W.D.N.C.: No REP in a police interview room
- TX2: No SW needed to get IMEI number of an abandoned cell phone to trace the owner
- W.D.Pa.: Affidavit for SW doesn’t have to say CI was reliable when the facts and circumstances alleged showed it
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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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Section 1983 Blog -
"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: August 2020
EFF: New Federal Court Rulings Find Geofence Warrants Unconstitutional
EFF: New Federal Court Rulings Find Geofence Warrants Unconstitutional by Jennifer Lynch and Nathaniel Sobel:
The Appeal: Highway Stop-And-Frisk: How Pennsylvania State Troopers Conduct Illegal Traffic Searches
The Appeal: Highway Stop-And-Frisk: How Pennsylvania State Troopers Conduct Illegal Traffic Searches (“A review of five years of cases that arose from traffic stops in the south-central region of the state shows that police used underhand tactics to justify holding … Continue reading
HI: Local police dept’s implied consent form was accurate
On the totality, defendant’s consent to BAC testing was voluntary. The police department’s implied consent form was accurate. State v. Hosaka, 2020 Haw. LEXIS 256 (Aug. 28, 2020)*:
M.D.Pa.: Govt’s justification for protective sweep or exigency based entry were speculative so motion to suppress granted
The government contention a protective sweep or exigent circumstances justified the entry was speculative and lacked foundation. Motion to suppress granted. United States v. Lara-Mejia, 2020 U.S. Dist. LEXIS 156946 (M.D. Pa. Aug. 28, 2020). The automobile exception doesn’t apply … Continue reading
pjmedia: Judge Denies Qualified Immunity for Kentucky Child Welfare Workers Who Illegally Strip-Searched Children
pjmedia: Judge Denies Qualified Immunity for Kentucky Child Welfare Workers Who Illegally Strip-Searched Children by Megan Fox:
Reason: More Than a Year Before Breonna Taylor’s Death, Some of the Same Cops Were Involved in Another Home Invasion Based on Dubious Evidence
Reason: More Than a Year Before Breonna Taylor’s Death, Some of the Same Cops Were Involved in Another Home Invasion Based on Dubious Evidence by Jacob Sullum (“The overlap suggests a pattern of shoddy investigation and reckless paramilitary tactics in … Continue reading
FL5: Compelling password to cell phone violates 5A
An attempt to order a cell phone owner to provide his password to the phone is testimonial under the Fifth Amendment. The court also concludes the foregone conclusion doctrine does not apply. Garcia v. State, 2020 Fla. App. LEXIS 12232 … Continue reading
OH2: Giving false name and DOB after SW executed supports obstruction charge
Defendant was removed from his house after a search warrant was served by the SWAT team. His false name and DOB to the officers supported his obstruction conviction. State v. Castleberry, 2020-Ohio-4233, 2020 Ohio App. LEXIS 3129 (2d Dist. Aug. … Continue reading
W.D.Wash.: Govt doesn’t need SW to search its own records
The government doesn’t need a search warrant to search its own records. No case says anything like that, and there is no reasonable expectation of privacy in the private sense. United States v. Fanyo-Patchou, 2020 U.S. Dist. LEXIS 155998 (W.D. … Continue reading
CA6: Cut-and-paste typos in SW can be ignored if intention can be determined
Typographical errors in a search warrant from using another warrant off a computer can be ignored if the intention of the search warrant can be determined. United States v. Abdalla, 2020 U.S. App. LEXIS 27375 (6th Cir. Aug. 27, 2020):
S.D.Ill.: Govt’s affidavits knock-and-announce would be unsafe were unrebutted
Defendant pled in his motion to suppress there was a knock-and-announce violation, and the government responded with affidavits that knocking would be unsafe. Unrebutted, that’s enough to deny a hearing. United States v. Moore, 2020 U.S. Dist. LEXIS 155454 (S.D. … Continue reading
TX14: Arrest outside a house can justify a protective sweep inside
An arrest outside a house, depending on the circumstances, can justify a protective sweep as much as an arrest inside. Defendant also claimed that a secondary protective sweep was unreasonably intense. Even if it was, it doesn’t affect the search … Continue reading
S.D.Cal.: 1983 suit against facts of detention barred by Younger abstention
Plaintiff’s claims in substantial part attack the facts of his current detention, and it’s barred by Younger abstention. Mondragon v. County of San Diego, 2020 U.S. Dist. LEXIS 155166 (S.D. Cal. Aug. 26, 2020)*:
MS: Def’s consent moots his lack of PC claim
Defendant’s claim of lack of probable cause goes unanswered because there is plenty of evidence of consent. Harris v. State, 2020 Miss. App. LEXIS 499 (Aug. 25, 2020):*
CA11: 2255 petitioner made a showing that reasonable jurists could disagree on merits of 4A claim not pursued, so he gets a CoA
Defendant, a 2255 petitioner, made a sufficient showing that reasonable jurists could disagree whether the Fourth Amendment claim that wasn’t pursued had merit. Therefore, the CoA is granted. Day v. Fla. Dep’t of Corr., 2020 U.S. App. LEXIS 27153 (11th … Continue reading
CA11: Arrest warrant permits arrest of def in a hotel room when there’s a reasonable belief on totality he’s there
A reasonable belief the defendant is present in a hotel room authorizes the police to enter when they have an arrest warrant for him, even though the motel room is not his “home.” In addition, forcing him to crawl out … Continue reading
D.P.R.: Def retained REP in backpack he stored in a car he wasn’t riding in
Defendant retained a reasonable expectation of privacy in a backpack that he placed in a car that he wasn’t in when it was searched. “The following circumstances established that the defendant possessed a reasonable expectation of privacy in the briefcase: … Continue reading
D.Mont.: Articulable suspicion not needed to run a license plate
Articulable suspicion not needed to run a license plate. United States v. Thompson, 2020 U.S. Dist. LEXIS 154156 (D. Mont. Aug. 24, 2020). Defense counsel wasn’t ineffective for not moving to suppress alleged overseizure of a doctor’s patient records where … Continue reading
TX7: Trial court’s initially misstating burden of proof was on def was corrected in the ultimate findings
The trial court first stated that the burden on consent was on the defendant, but the ultimate findings of fact and conclusions of law concluded that the state proved it by sufficient evidence. This corrected the previous mistake, and the … Continue reading
S.D.Iowa: Stop for “walking while black” without RS
Defendant’s stop by police on a mere hunch by police on a call from a prosecutor who was just shopping was without reasonable suspicion. United States v. Kelly, 2020 U.S. Dist. LEXIS 153543 (S.D. Iowa Aug. 20, 2020):