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Recent Posts
- CA7: Jail officials holding plaintiff under a valid court order aren’t liable for not releasing him sooner after a sentencing error
- Volokh: Do Fourth Amendment Protections Change When Property Is Moved?
- M.D.Pa.: Def was neither shipper nor recipient of USPS parcel, so he had no standing in it
- WI: Obtaining def’s DNA by ruse wasn’t an illegal search
- WaPo: Apple, Google and Venmo fight new U.S. plan to monitor payment apps
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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: June 2021
IA: State constitution prohibits warrantless trash search; “Current Fourth Amendment jurisprudence is a mess.”
Finding Iowa law long recognized trespass was an unreasonable entry, the state Supreme Court holds under the state constitution that trash out for collection by the trash collector is not abandoned property, and defendant still retained a reasonable expectation of … Continue reading
MI: Def’s arrest being unlawful, his statement during should be suppressed
The state supreme court having found defendant’s arrest unlawful, his statement during the arrest should have been suppressed. People v. Hammerlund, 2021 Mich. App. LEXIS 3773 (June 17, 2021) (2-1) (dissent). Detention under the Material Witness Statute that was validly … Continue reading
OK: Smell of burnt marijuana in car is still PC in MMJ state
The smell of burnt marijuana in defendant’s car was still probable cause, despite it being in a medical marijuana state. State v. Roberson, 2021 OK CR 16, 2021 Okla. Crim. App. LEXIS 16 (June 17, 2021):
FL2: State’s failure to prove policy for inventory was failure of proof on warrantless search
Inventory is an exception to the warrant requirement, so the state carries the burden of proof. Here, the state failed to prove the policy, a General Order, that permitted the inventory to show that it was not a subterfuge for … Continue reading
WI: Warrantless blood draw from incapacitated driver unconstitutional
Wisconsin’s statute allegedly permitting blood draws of incapacitated drivers is unconstitutional for lack of actual consent, but the good faith exception saves it today. State v. Prado, 2021 WI 64, 2021 Wisc. LEXIS 98 (June 18, 2021):
FL5: Police report’s stating search was search incident isn’t binding at the suppression hearing
The officer’s noting the search of defendant’s vehicle was incident to arrest was incorrect and not binding at the suppression hearing. It was valid as an inventory. State v. Koontz, 2021 Fla. App. LEXIS 9019 (Fla. 5th DCA June 18, … Continue reading
D.N.M.: Def’s failing to stop for a Terry stop doesn’t justify hot pursuit into home
Officers cannot enter a defendant’s home in hot pursuit from his failing to stop for a Terry stop on mere reasonable suspicion. United States v. Cannon, 2021 U.S. Dist. LEXIS 112705 (D.N.M. June 16, 2021). The officer’s initial observations of … Continue reading
OH10: Not challenging SW was strategic choice in self-defense case
Defense counsel wasn’t ineffective for not objecting to the search warrant because it would contradict his claim of self-defense. State v. Messenger, 2021-Ohio-2044, 2021 Ohio App. LEXIS 2017 (10th Dist. June 17, 2021) (see § 60.19) The issue here is … Continue reading
D.Mass.: Four month delay in getting SW for cell phone was not unreasonable
There was justification for seizure of defendant’s cell phone in plain view because it might have evidence of a crime on it. The four month delay in obtaining a search warrant for the phone was reasonable under all the circumstances, … Continue reading
Mapp v. Ohio decided 60 years ago today
Mapp v. Ohio was decided 60 years ago today. See these prior posts; 2017 and 2014
IA: Def’s registration papers weren’t in order; while waiting on a response from dispatch, criminal history led to calling drug dog. This didn’t extend the stop
The officer intended only to give a warning, but it took a while for defendant’s registration to clear a computer check. While waiting, the officer checked defendant’s criminal history finding a significant meth history and then called for a drug … Continue reading
Cal.4: Detention without RS led to finding warrant; attenuated under Strieff
Defendant was seen at 4 am apparently casing cars in San Diego in a neighborhood where people were never on the street at that hour. The stop was based on a mere hunch, but it produced an outstanding warrant. “Although … Continue reading
CA5: The fact more information could have been gathered didn’t make what had been learned false
The fact the affiant officer could have checked other sources to determine the validity of his probable cause didn’t mean that the information in hand was false. Davis v. City of Andrews, 2021 U.S. App. LEXIS 17845 (5th Cir. June … Continue reading
S.D.Ind. & E.D.La.: New crime during arrest not suppressed
Even crediting defendant’s version of events, the exclusionary rule would not be applied to the video of defendant’s violent resistance during his arrest. United States v. Hill, 2021 U.S. Dist. LEXIS 111803 (S.D. Ind. June 14, 2021). Defendant’s new crime … Continue reading
VA: “[T]he acquisition of real-time CSLI data to locate a fleeing murder suspect in an exigent circumstance is permissible under Carpenter.”
“[T]he acquisition of real-time CSLI data to locate a fleeing murder suspect in an exigent circumstance is permissible under Carpenter.” Moreno v. Commonwealth, 2021 Va. App. LEXIS 91 (June 15, 2021). The community caretaking exception did not justify officers’ opening … Continue reading
D.C.Cir.: Def’s sole presence after ShotSpotter report led to RS
A ShotSpotter report led to reasonable suspicion for defendant’s stop. “We conclude that the record facts support the findings of the district court. The totality of the information known to Turner when she stopped Jones sufficed to raise a reasonable … Continue reading
Reason: Michigan Cops Raided a Home, Damaged the House, and Held a Family at Gunpoint. It Was the Wrong Address.
Reason: Michigan Cops Raided a Home, Damaged the House, and Held a Family at Gunpoint. It Was the Wrong Address. (“Accountability is unlikely.”)
M.D.Pa.: ISP’s duty to report CP under 18 U.S.C. § 2258A doesn’t make it still not a private search
Kik’s duty to report child pornography on its platform under 18 U.S.C. § 2258A doesn’t make its search still not a private search. United States v. Hart, 2021 U.S. Dist. LEXIS 111166 (M.D. Pa. June 14, 2021). The trial court … Continue reading
D.Mass.: 14 day delay between seizure and search of cell phone reasonable
This 14 day delay between the seizure of his cell phones and the application of the warrant to seize them is reasonable. In addition, there is no Fourth Amendment right to have a search warrant issued sooner than it was, … Continue reading
N.D.Ind.: Officer’s lack of credibility results in finding of no RS
The court finds the officer’s testimony and credibility completely lacking on the basis for the stop and grants the motion to suppress. United States v. McGibney, 2021 U.S. Dist. LEXIS 110826 (N.D. Ind. June 14, 2021).* Execution of a search … Continue reading