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ABA Journal Web 100, Best Law Blogs (2017); ABA Journal Blawg 100 (2015-16) (discontinued 2018)
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© 2003-23,
online since Feb. 24, 2003 Approx. 350,000 visits (non-robot) since 2012 Approx. 45,000 posts since 2003 (25,700+ on WordPress as of 12/31/22)~~~~~~~~~~~~~~~~~~~~~~~~~~
Fourth Amendment cases,
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Federal Law Enforcement Training Center Resources
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Stringrays (ACLU No. Cal.) (pdf)
Congressional Research Service:
--Electronic Communications Privacy Act (2012)
--Overview of the Electronic Communications Privacy Act (2012)
--Outline of Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012)
--Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012)
--Federal Laws Relating to Cybersecurity: Discussion of Proposed Revisions (2012)
ACLU on privacy
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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!”
"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."
---Pepé Le Pew
—Johnson v. United States, 333 U.S. 10, 13-14 (1948)
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Category Archives: Good faith exception
S.D.Ga.: Geofence warrant based on 16 SWs showed PC and GFE
(1) Defendant lacks standing to challenge a geofence warrant to the cell phone accounts held by others. The affidavits for 16 warrants all showed probable cause. The possibility of a different standing for probable cause for novel surveillance is rejected. … Continue reading
OH12: Gerstein violation doesn’t warrant new trial
“Assuming for the sake of argument that Akladyous was in fact improperly detained for more than 48 hours before a probable cause finding was made, such argument would not invalidate his subsequent conviction pursuant to Gerstein.” State v. Akladyous, 2023-Ohio-3105, … Continue reading
CA6: No PC or GFE in conclusory child porn warrant based largely on boilerplate
A rarity: A child pornography search warrant that was based on boilerplate and little facts that also failed the good faith exception. United States v. Lewis, 2023 U.S. App. LEXIS 23316 (6th Cir. Sep. 1, 2023):
OH4: Franks challenge seven years after motion to suppress denied by res judicata
There was a motion to suppress denied at trial. “Now, seven years later appellant seeks to file a motion to suppress and a motion for a Franks hearing. We believe, however, that the trial court correctly concluded that res judicata … Continue reading
CA5: GFE applies to undated Instragram posts
Undated Instagram messages were still sufficient for the good faith exception to apply to a warrant issued on them. United States v. Mason, 2023 U.S. App. LEXIS 22367 (5th Cir. Aug. 23, 2023)*:
CA6: GFE applies to showing of nexus, too
The affiant for the warrant failed to show nexus, but there was enough nexus for the good faith exception to apply. United States v. Westley, 2023 U.S. App. LEXIS 22357 (6th Cir. Aug. 22, 2023):
TX5 upholds geofence warrant on PC and nexus, and then with GFE
The geofence warrant here satisfied the requirements of both probable cause and the good faith exception. There aren’t a lot of cases on geofence warrants, but those reaching the merits (and not just GFE) fully support the process here of … Continue reading
D.N.J.: Residual smell of MJ can still provide PC
“The Officers testified the smell of marijuana can remain in the area, or linger on clothing or other items, after marijuana is removed from the area, before or after it has been smoked. … It can also be difficult to … Continue reading
CA8: Shot fired call from house resulted in protective sweep when door was answered by man matching description
Officers responding to a call about a shot fired from a window found a man answering the door matching the 911 description. A protective sweep was thus permissible. Defendant also consented to the entry. United States v. Williams, 2023 U.S. … Continue reading
D.Minn.: Tracking warrant that provided for tracking but not installation was saved by GFE
The tracking warrant provided for tracking of the car, but did not mention installing the tracker. The court finds the good faith exception applies. United States v. Gonzalez, 2023 U.S. Dist. LEXIS 142057 (D.Minn. Aug. 15, 2023). There was probable … Continue reading
W.D.Okla.: Pepper spray use under the circumstances was reasonable
“Anthony argues that Gottschalk used excessive force when he sprayed him with OC spray, which the court now refers to as pepper spray. Applying the Graham factors and considering the totality of the circumstances, the court concludes that a reasonable … Continue reading
D.Conn.: Apparent overbreadth in SW cured by GFE on how it was executed and on what
The search warrant didn’t specify the crime under investigation and that was a problem for particularity. That could have been cured by the affidavit being attached to the warrant at execution but it wasn’t. It was referred to in the … Continue reading
CA8: Pulling off a blanket during a stop on slight RS was unreasonable
Defendant got off a Greyhound bus in Omaha during a driver change. The officers just barely had reasonable suspicion to detain defendant, and pulling his blanket off amounted to a search. That enabled the officer to see he had a … Continue reading
NY Cortlandt Co.: Requirement of business records searches to take low income housing vouchers violates 4A
Acceptance of section 8 low income housing vouchers violates the Fourth Amendment because the landlord has to permit searches of business records to participate. Rental property is not a closely regulated industry, and 1981’s Sokolov v. Freeport controls. “Thus, by … Continue reading
Cal.2: Geofence warrant issued before any case law showed PC, particularly, and good faith
Geofence warrant issued in 2019 before there were any reported cases satisfied probable cause, particularity, and the good faith exception. Price v. Superior Court, 2023 Cal. App. LEXIS 505 (2d Dist. July 3, 2023):
CA10: Despite SW’s overbreadth, executing officers understood the crime under investigation; GFE applies
The warrant was previously held overbroad and the case was remanded to the district court for findings on the good faith exception. In this second appeal, the good faith exception applies. The officers understood the limits in the warrant to … Continue reading
CA1: Affidavit for CP failed to show any more than child nudity and lacked PC; no GFE either
The search warrant for defendant’s phone was defective and lacked probable cause. Child nudity alone is not child pornography, and the affidavit tracks the statute and doesn’t show that it was pornography. “We hold that the affidavit failed to cross … Continue reading
W.D.Mich.: When the question of PC for a warrant is close, there’s still a substantial basis for finding PC and GFE
The question of probable cause to search these packages was a close call. There clearly was at least reasonable suspicion and some of the same facts support probable cause. On the totality, there was at least a substantial basis for … Continue reading
MD reiterates search incident doctrine
Maryland reiterates search incident. “Considering these cases together, a clearer picture of the search incident to arrest exception emerges. Pacheco reminds us that, for the exception to apply, there must first exist probable cause to arrest before conducting the search. … Continue reading
