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Recent Posts
- DE: Instagram SW was narrowly limited by time
- CA5: Where place to be searched appeared to be one residence, not two, SW valid
- E.D.Okla.: Search of lawyers and their cars coming into jail did not obstruct access to counsel
- NY Albany Co.: Unrestrained administrative searches of cannabis stores violates 4A
- D.Minn.: Overdose call justified frisk
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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 -
© 2003-25,
online since Feb. 24, 2003 Approx. 500,000 visits (non-robot) since 2012 Approx. 47,000 posts since 2003 (30,000+ on WordPress as of 12/31/24) -
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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)
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Category Archives: Burden of pleading
W.D.N.Y.: Incorrect AUSA assertion about which phone was searched had to be promptly clarified, not when he or she felt like it
Here, the AUSA was apparently confused in pleadings as to which cell phone was searched, a white or black one. When the AUSA learned that the wrong one was spoken of, he or she had a duty to promptly clarify–not … Continue reading
IA: Federal supervised release search standards apply when leading to state prosecution
Conflict of laws: Where defendant’s supervised release search was by federal officers, federal law controls in state court, not state law. State v. Young, 2024 Iowa Sup. LEXIS 106 (Dec. 20, 2024). A motion to reconsider denial of a Fourth … Continue reading
CA6: 4A IAC claim requires a showing petitioner would win on the merits of search claim
“And if Derringer intended to argue that counsel should have moved to suppress the cell phone videos, he did not identify any basis for challenging the validity of the search warrant that resulted in the seizure of the cell phone … Continue reading
CA2: Plain view seizure of cell phone established by officers’ knowledge of role of cell phones in crime
The evidentiary value of a cell phone for plain view was established here because, when officers saw the phone, they’d been investigating a conspiracy involving cell phone for months. United States v. Kurland, 2024 U.S. App. LEXIS 32177 (2d Cir. … Continue reading
D.S.C.: No standing in suitcase on def’s back porch he wouldn’t claim
Defendant didn’t have standing to challenge the search of a suitcase on the back porch of his house that he didn’t claim ownership of. United States v. Lane, 2024 U.S. Dist. LEXIS 227893 (D.S.C. Dec. 17, 2024).* Plaintiff’s Fourth Amendment … Continue reading
E.D.Mo.: It was settled over 50 years ago that an officer could surreptitiously record a face-to-face conversation
“Bolden’s entire focus is on recordings between himself and an undercover federal agent who was outfitted with a covert recording device. The government is correct-Bolden’s argument is foreclosed by long-standing caselaw.” As in 1971. United States v. Bolden, 2024 U.S. … Continue reading
OH8: Failure to attempt to distinguish contrary settled cases is waiver of argument
“In similar situations to the second transaction, federal courts have upheld the validity of the warrant to search a drug dealer’s premises based on the ‘common sense’ inference that drugs would be found in the home, essentially finding that evidence … Continue reading
CA11: No prejudice for failing to file motion to suppress drug def was acquitted of
2254 petitioner can’t show prejudice from defense counsel’s failure to file a motion to suppress cocaine when he was acquitted of that charge. Zayas-Acosta v. Sec’y, Dep’t of Corr., 2024 U.S. App. LEXIS 30236 (11th Cir. Nov. 27, 2024). Challenge … Continue reading
CA10: Gant permits search for DL in car when def fails to identify himself
Gant search incident permits a search for a driver’s real driver’s license in a car when he fails to properly identify himself. United States v. Pinder, 2024 U.S. App. LEXIS 29995 (10th Cir. Nov. 26, 2024). Complaining generally about a … Continue reading
MO: Plain error doesn’t revive a waived search claim
Defendant didn’t object pretrial or at trial to the search, and he can’t argue plain error now. State v. Lane, 2024 Mo. App. LEXIS 837 (Nov. 19, 2024). The finding defendant was stopped because of a seatbelt violation is not … Continue reading
N.D.Iowa: DUI stop justifies search for open containers
Defendant’s DUI stop justified a search for open containers, and a firearm was validly found. United States v. Stuckey, 2024 U.S. Dist. LEXIS 207801 (N.D. Iowa Nov. 15, 2024). Defendant moved to suppress a cell phone warrant at the border … Continue reading
FL1: Lack of candor in appeal brief earns admonition
Affirmed per curiam. The concurring opinion: The facts concerning the stop and search in the appeal brief demonstrate a serious lack of candor which the state didn’t even challenge. All counsel included was his cross-examination and omitted the state’s direct … Continue reading
E.D.Pa.: Remedy for illegal search is to move to suppress, not to dismiss the case
A ground to suppress a search belongs in a motion to suppress, not to dismiss the indictment. United States v. Bailey, 2024 U.S. Dist. LEXIS 198707 (E.D. Pa. Oct. 31, 2024). The search warrant didn’t provide the address of the … Continue reading
NY1: Failure to controvert any facts or make an argument justifies denying suppression hearing
“Although the felony complaint, indictment, voluntary disclosure form, arraignment transcript, and search warrant affidavit disclosed to defendant provided him with ‘detailed information about the sequence of events leading up to his arrest’ …, he failed to controvert the specific information … Continue reading
CA5: Police shooting from behind after escalating violent situation was not unreasonable
The police shooting here from behind was not unreasonable on the totality. “When McVae threw the rock, Trooper Perez had to make an immediate reflexive decision of how to protect himself in a rapidly evolving situation against an increasingly violent … Continue reading
NY: Not IAC to not raise a novel knock-and-announce argument
Defendant’s ineffective assistance of counsel argument that defense counsel was deficient in not raising a novel argument about not following SCOTUS’s Hudson knock-and-announce case fails. No reasonable defense lawyer would have seen the need to raise it, and the merits … Continue reading
CA6: Realtime ping information didn’t require a warrant
“Perry first challenges the validity of the search warrants for call and location data from his two cellphones. Law-enforcement officers generally need a warrant to conduct a ‘search’ that intrudes upon a person’s reasonable expectation of privacy. … But a … Continue reading
D.Idaho: The exclusionary rule does not apply in pretrial release revocations
The exclusionary rule does not apply in pretrial release revocations. Indeed, previously suppressed evidence can be considered on the factors for release. United States v. Cuevas, 2024 U.S. Dist. LEXIS 185724 (D. Idaho Oct. 9, 2024). “Assuming without deciding that … Continue reading
S.D.Ohio: City’s mowing unkempt yard wasn’t 4A violatoin
The city’s coming on to a sovereign citizen’s yard to mow it when he refused did not violate the Fourth Amendment. Prows v. City of Oxford, 2024 U.S. Dist. LEXIS 177976 (S.D. Ohio Sep. 30, 2024).* Defendant’s motion for return … Continue reading
CT: Exigency shown for animal control entry
“Our scrupulous examination of the entire record supports the court’s conclusion that the officers had reasonable cause to believe that the dogs contained within the barn were in imminent harm and neglected, or cruelly treated.” City of Middletown v. Wagner, … Continue reading