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Recent Posts
- D.Utah: Police slow walked traffic stop without RS
- IA: Court ordered privilege review of search was at its expense
- D.Kan.: Preservation request under SCA isn’t a search or seizure
- UT: RS on a prior day was not RS for stop on day in question
- CA2: Ptf alleged invasion of privacy for 4A violation, and that’s enough
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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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--Federal Statutes Governing Wiretapping and Electronic Eavesdropping (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)
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Category Archives: Burden of pleading
N.D.Ill.: A “network of pole cameras” doesn’t violate 4A
Five pole cameras were trained on defendant’s house. A “network of pole cameras” isn’t a Fourth Amendment violation. See United States v. Tuggle, 4 F.4th 505 (7th Cir. 2021). Moreover, he does not rebut the presumption of good faith with … Continue reading
OH4: That stop was with RS isn’t arguing that it was continued with RS, and that’s waiver
Defendant started with the argument that the stop lacked reasonable suspicion, but he did not argue that the stop was continued with reasonable suspicion until the appeal. Failure to raise it that way in the trial court was waiver. State … Continue reading
CA11: Failure to plead facts of standing or REP requires denial of motion to suppress
“If a defendant fails to plead sufficient facts to show a reasonable expectation of privacy, ‘a trial court may refuse a defendant’s request for a suppression hearing’ and deny his motion to suppress.” United States v. Robinson, 2022 U.S. App. … Continue reading
CA9: Govt “tucked” independent source argument into another and then abandoned it for years; not fully developed
The government’s independent source argument was (1) tucked into another argument and then not fully developed, and (2) then essentially abandoned for years during the litigation. It was not fully developed. United States v. Osborne, 2022 U.S. App. LEXIS 2682 … Continue reading
S.D.Ind.: The state used Google satellite images to corroborate officer’s testimony of stop
The government used Google satellite images and distancing to corroborate the officer’s testimony defendant didn’t signal his turn in time. After the stop, the smell of marijuana was apparent. United States v. Miles, 2022 U.S. Dist. LEXIS 14860 (S.D.Ind. Jan. … Continue reading
OH2: Police car blocking def’s car in a parking lot was a seizure without RS
“We conclude that a police officer’s act of positioning the cruiser in a way that made it difficult, albeit not impossible, for Jones to drive away constituted a show of authority sufficient to cause a reasonable person in Jones’ position … Continue reading
CA1: Def preserved Rodriguez argument without citing it
Defendant preserved his Rodriguez argument by stating that the stop was continued without reasonable suspicion but not citing the case. Nevertheless, he loses on the merits. United States v. Reyes, 2022 U.S. App. LEXIS 1417 (1st Cir. Jan. 19, 2022). … Continue reading
DE: Mere citation of a case in motion to suppress didn’t put state and court on notice as to other issues
Defendant’s citation of a case in his motion to suppress that was on point to only one issue but not the others was insufficient to put the state and court on notice as to the others. State v. Hollar, 2021 … Continue reading
N.D.Ga.: Failure to record videoconference SW application under state law not 4A violation
Georgia has allowed video conferencing search warrant application for years. The statute requires a recording, but the federal courts have never held that a failure to record violates the Fourth Amendment when a state search warrant ends up in federal … Continue reading
S.D.N.Y.: Supposed Franks challenge really only expressing things for cross at trial
Defendant’s motion to reconsideration seems to raise a Franks-type challenge to the search which was not the focus of his original motion to suppress. What he raises “may be interesting cross-examination at trial, [but] they fail entirely to undermine the … Continue reading
CA6: No REP in truck driven without authority and probably stolen
Defendant had no reasonable expectation of privacy in a truck that was, for all intents and purposes, stolen from a mentally ill woman who could not remember who it was loaned to or when. Moreover, he denied knowledge of the … Continue reading
TN: Merely citing to the particularity requirement not effective appellate argument without context
Defendant’s particularity argument fails for lack of cogent argument: “Defendant’s first question regarding the probable cause requirement has already been answered, and Defendant offers no evidence or argument in support of his apparent challenge to the particularity of the warrant. … Continue reading
W.D.N.Y.: SI lacking PC is suppressed
Defendant was arrested and searched incident to arrest, and the court finds no valid basis for the search. He was too far away from and out of sight of the drugs the government was attempting to link to him. United … Continue reading
CA9: Defendant had standing in his hotel room despite having no REP in a stolen laptop in the room
Defendant had standing to challenge the search of his hotel room, but he did not have any reasonable expectation of privacy in a stolen laptop he possessed. If the entry into the hotel room is unreasonable, the seizure of the … Continue reading
CA3: No suppression hearing needed on the mere chance something will turn up
The request for an evidentiary hearing on a suppression motion based on the mere hope something might turn up is really just speculation and should be denied. United States v. Dfouni, 2021 U.S. App. LEXIS 15091 (3d Cir. May 19, … Continue reading
N.D.Cal.: Exigency for entry fails; officers knew victim was not there
The emergency aid justification for a warrantless entry into defendant’s house in a domestic dispute wasn’t applicable because there no longer was an emergency. The victim was safe elsewhere and nobody was home. Also, the good faith exception wasn’t proved … Continue reading
W.D.Pa.: Generic motion to suppress denied
Defendant’s general motion to suppress is denied. United States v. Knox, 2021 U.S. Dist. LEXIS 72716 (W.D. Pa. Apr. 15, 2021). “In short, when viewing this evidence in the light most favorable to appellant, reasonable minds could only conclude that … Continue reading
CA3: Mid-trial suppression argument wasn’t timely
Defendant’s mid-trial suppression motion was untimely despite the defense claim that this was a second search he wasn’t aware of until it came up at trial. United States v. Elcock, 2021 U.S. App. LEXIS 9503 (3d Cir. Apr. 1, 2021). … Continue reading
W.D.La.: Motion to suppress SW has to plead and proffer that GFE doesn’t apply
Defendant had a duty to address the good faith exception in his motion and amended motion to suppress a search under a warrant, but he did not. United States v. Lyons, 2021 U.S. Dist. LEXIS 48780 (W.D. La. Feb. 17, … Continue reading