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- W.D.Ark.: Parole search waiver moots lack of PC argument
- AR: RS shown for boating while intoxicated stop
- W.D.Mo.: Wrong address in SW wasn’t fatal where right house was searched
- NY: Failure to show independent source for officer’s observation of def required reversal
- VA: Outline of a gun in def’s pocket was RS
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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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"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: Warrant papers
S.D.N.Y.: SW affidavit not yet available to def merely for bail application
Defendant doesn’t get to see the affidavit for warrant yet just for his bail application because the government asserts the investigation is still ongoing. Discovery of child pornography was inadvertent, and the bail application isn’t a discovery device. The question … Continue reading
CA6: State issuing magistrate’s failure to transcribe supplemental information for PC was not enough to suppress
The affidavit and supplementing testimony provided substantial probable cause for issuance of the warrant. State law requires any testimony supplementing a search warrant affidavit be preserved and transcribed. The state issuing magistrate failed. The officer, however, acted in good faith, … Continue reading
S.D.N.Y.: Arrested target of cell phone SW has common law right of access to affidavit and SW
The target’s motion to unseal the search warrant affidavit for his cell phone is granted. There is a common law right of access, and the First Amendment right of access does not even have to be decided. The government’s only … Continue reading
W.D.La.: Failure to make a timely return of SW papers is not a const’l error
Failure to make a timely return of the warrant to the issuing court is not a constitutional error, and there is no showing of prejudice. United States v. Warren, 2023 U.S. Dist. LEXIS 176014 (W.D. La. Aug. 18, 2023), adopted, … Continue reading
S.D.Tex.: Court declines to unseal warrant papers yet; redaction not feasible
The search warrant papers involving search of property of a U.S. Representative are not unsealed yet. The redactions were nearly everywhere and it would not make sense. The interests in temporary nondisclosure are more important here; the government has made … Continue reading
E.D.Pa.: Ongoing investigation bars access to warrant papers for time being
The target of a search warrant can’t yet get access to the affidavit in support because the case is still under investigation and there is a potential of exposing grand jury witnesses. In re Search Warrants Issued November 30, 2022, … Continue reading
E.D.La.: Leaving the wrong SW at the scene of the search is not a ground to suppress
Leaving the wrong search warrant at the scene of the search is not a ground to suppress. United States v. Major, 2023 U.S. Dist. LEXIS 116569 (E.D. La. July 7, 2023). The CI had no track record, but his story … Continue reading
E.D.Mich.: Failure to file SW return doesn’t require suppression
Failure to file the warrant return doesn’t require suppression. It’s a curable ministerial act. Besides, the defendant can’t show prejudice. As to the merits, the search warrant was issued with probable cause and the good faith exception applies in any … Continue reading
FL1: If trial court refuses to unseal SW affidavit, in camera review must be sought to preserve issue
Defendant sought unsealing of the search warrant affidavit which the state successfully resisted on the ground of informant privilege in other ongoing investigations. The defense never sought in camera review. Without that, the issue was unpreserved for appellate review. Leverette … Continue reading
S.D.W.Va.: No 4A right to leaving SW at scene of search
Searching officers do not violate the Fourth Amendment by not leaving a copy of the search warrant, let alone the original. Carter v. Luciano, 2023 U.S. Dist. LEXIS 101723 (S.D. W. Va. June 12, 2023).* The search warrant was based … Continue reading
TX9: Affidavit for a SW is a public record
The affidavit for a search warrant is a public record. $49,815.00 in United States Currency v. State, 2023 Tex. App. LEXIS 3775 (Tex. App. – Beaumont June 1, 2023). Defendant did not “distance himself” from the bags in the car … Continue reading
AZ: Confession obtained after Franks violation should have been suppressed, too
The trial court found a Franks violation from the officer overstating with reckless disregard the facts, and it suppressed the search. Then came defendant’s statements based on the false search warrant affidavit. The trial court did not suppress, but the … Continue reading
CO: Typo in date (9/9 v. 9/30) in SW affidavit could be overlooked by other contents referring to previous few hours; GFE also applies
The typographical error in the affidavit showing the date as September 9th when it should have been September 30th could be overlooked because the affidavit as a whole referred to the previous few hours, and the good faith exception applies. … Continue reading
CA11: Mere fact of a firearm in the home wasn’t exigency here
“Although Officer Plesnik now arrived with the knowledge that there was a firearm on site, the mere presence of a firearm—without more—did not transform the non-exigent scene into an exigent circumstance and trigger the emergency aid exception. Indeed, by the … Continue reading
N.D.Ala.: Wrong street number in a SW didn’t void it where house was well described and officers had been there before
The wrong street number on the search warrant did not make it invalid. Officers knew the house from surveillance, and it was described. The right house was searched. “So, the erroneous street number did not make the warrant invalid.” Threatt … Continue reading
M.D.Ga.: No standing in packages sent to one’s address but with all different names on them
Defendant failed to show standing in packages searched coming to an address he claimed as his “primary address,” but the addressee and sender were not him. United States v. Williams, 2023 U.S. Dist. LEXIS 26755 (M.D. Ga. Feb. 16, 2023). … Continue reading
NE: Failure to deliver SW to def not 4A violation and doesn’t warrant suppression
Defendant was the subject of a search warrant for a blood draw. The fact he wasn’t given a copy of the warrant doesn’t require reversal. He clearly knew what was going on. State v. Svendgard, 31 Neb. App. 596, 2023 … Continue reading
NY2: SW papers provided to GJ aren’t discoverable because of GJ secrecy
Defendant sought search warrant materials presented to the grand jury. Denied because of grand jury secrecy. Sculti v. Finley, 2022 NY Slip Op 06950, 2022 N.Y. App. Div. LEXIS 6820 (2d Dept. Dec. 7, 2022). Defendant had no standing in … Continue reading
W.D.Pa.: All Writs Act proceeding for tracking order is a judicial proceeding for common law right of access to records
An All Writs Act proceeding by the government to track someone in real time back in 2020 is a judicial record subject to the common law right of disclosure of court records. In re Forbes Media LLC, 2022 U.S. Dist. … Continue reading