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- VI: Wife had apparent authority to consent to search for firearm in bedroom, even if they didn’t share it
- GA: SW for air bag module and vehicle black box issued with PC and was particular
- W.D.N.Y.: Just saying the Stone bar is “misplaced” isn’t an answer
- OH2: Motion to suppress not proper to challenge authentication of a record for trial
- IN: Greyhound bus subject to automobile exception because dog alerted on luggage compartment
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ABA Journal Web 100, Best Law Blogs (2015-17) (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)
--Outline of Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012)
--Federal Statutes Governing Wiretapping and Electronic Eavesdropping (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, Let it Bleed (album, 1969) -
"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: Waiver
OH2: Motion to suppress not proper to challenge authentication of a record for trial
A motion to suppress doesn’t lie just because the defense thinks that a record can be authenticated under Rule 901. State v. Wolfe, 2025-Ohio-866 (2d Dist. Mar. 14, 2025). “Because Phillips did not make a contemporaneous objection to either the … Continue reading
D.N.J.: OSHA site inspection was on a neutral plan and particular
OSHA sought an inspection warrant for a cannabis producer in New Jersey. It was based on a neutral inspection plan [no complaints] and was particular in scope and therefore reasonable under the Fourth Amendment. United States v. Inspection Warrant, 2025 … Continue reading
WA: Officers didn’t have to check whether MJ grow was state licensed before they sought a SW
“We hold that when viewed together, the facts in the affidavit were sufficient to establish probable cause to search all four properties, regardless of the fact that the odor of marijuana was only detected at two of the properties. Further, … Continue reading
CA10: The district court properly held that officers climbing over a fence to get to ptf’s front door was a 4A violation, but QI applies, still
Officers came to plaintiff’s property to investigate a marijuana grow. His property was surrounded by a fence, and he didn’t respond to air horns to get his attention, so they climbed over the fence to be able to get to … Continue reading
CA6: Franks argument subsumed within PC argument is treated as waived
Defendant’s Franks argument was skeletal and subsumed within his lack of probable cause argument. It is treated as waived. “And we consider arguments forfeited where ‘[i]ssues [are] adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation.’” … Continue reading
NE: PBT unnecessary for PC if it’s apparent def under influence
The officer didn’t need a PBT to have probable cause for defendant’s DUI arrest. His observation of defendant was enough. State v. Porter, 33 Neb. App. 453 (Feb. 25, 2025).* Inevitable discovery applied. The community caretaking function allowed seizure of … Continue reading
S.D.N.Y.: Govt declines to use challenged evidence so it’s moot; def can reassert if need be
The government says it doesn’t intend to use challenged evidence, so the motion to suppress is moot. If the government changes its mind, defendant can reassert it. United States v. Combs, 2025 U.S. Dist. LEXIS 25641 (S.D.N.Y. Feb. 12, 2025).* … Continue reading
D.Alaska: It was litigation strategy to not file a motion to suppress and cut def’s losses
It was litigation strategy to not file a motion to suppress and cut defendant’s losses. No ineffective assistance of counsel. United States v. Davis, 2025 U.S. Dist. LEXIS 24036 (D. Alaska Jan. 8, 2025).* The cell phone warrant was sufficiently … Continue reading
MO: GPS monitoring of a sex offender after release was reasonable
F.S.’s expectation of privacy is diminished as a convicted felon and registered sex offender, and the GPS monitoring’s intrusion on her privacy is slight. The state has a legitimate interest in protecting children and other potential victims from sex crimes. … Continue reading
OH5: When the trial court sustains a search on two grounds and only one is appealed, the decision will be affirmed
When the trial court sustains a search on two grounds and only one is appealed, the decision will be affirmed. State v. Alexander, 2025-Ohio-236 (4th Dist. Jan. 23, 2025). In an animal seizure case, state law requires a post-seizure administrative … Continue reading
D.Minn.: The fact a gun wasn’t found in def’s car doesn’t mean there wasn’t PC to search
“Defendant’s flight from law enforcement is, however, not the only basis to support the existence of probable cause to believe that evidence of a crime or contraband would be found in the Jeep. The probable cause to search the Jeep … Continue reading
CA5: Where place to be searched appeared to be one residence, not two, SW valid
The search warrant was for 8977 Deer Trail Run, but it turned out to be two properties. “From all outward appearances there was only one property, not two. The officers acted in objectively reasonable good faith in relying on the … Continue reading
FL3: With a change in statute, mere possession of a firearm in a high crime area wasn’t RS
“While the officer observed Sheppard with a concealed weapon in a high crime area, under the revised statute making non-licensure an element of the crime of concealed carry, Sheppard’s mere possession of the concealed weapon did not constitute criminal activity. … Continue reading
CA7: Concession of PC in USDC bars this claim
“On appeal, Birkley does not contest the district court’s reasons for dismissing the case, including its rationale that Birkley failed to state a claim because he conceded at his preliminary hearing that the police had probable cause for their actions. … Continue reading
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
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
W.D.La.: Dog sniff at door of commercial rented storage unit violated no REP
A dog sniff at the door to a rented commercial storage unit violated no reasonable expectation of privacy. United States v. Harris, 2024 U.S. Dist. LEXIS 224506 (W.D. La. Nov. 4, 2024). There’s no reasonable expectation of privacy in one’s … 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
NM: Trial courts can raise search issues on their own
A trial judge in New Mexico noticed that there were an unusual number of suspect warrantless searches going unchallenged by the defense. She set suppression hearings and several cases were nolle prossed. A few survived to be heard. On certification … Continue reading
D.Mont.: Off-roading during fire restriction was RS
Reasonable suspicion and a park violation: “Accordingly, Sergeant Call’s 11 years of experience in Park County coupled with his knowledge of state and county law gave him reason to suspect that Mitchell was potentially engaged in criminal conduct—namely, trespassing and … Continue reading