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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© 2003-22,
online since Feb. 24, 2003
WebPage Visits: real non-robot hits since 2010; approx. about 35,000 posts since 2003~~~~~~~~~~~~~~~~~~~~~~~~~~
Fourth Amendment cases,
citations, and linksLatest Slip Opinions:
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FDsys, many district courts, other federal courts
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State courts (and some USDC opinions)
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To search Search and Seizure on Lexis.com $Research Links:
Supreme Court:
SCOTUSBlog
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Solicitor General's site
SCOTUSreport
Briefs online (but no amicus briefs)
Oyez Project (NWU)
"On the Docket"–Medill
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General (many free):
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Lexis.com $
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F.R.Crim.P. 41
www.fd.org
Federal Law Enforcement Training Center Resources
FBI Domestic Investigations and Operations Guide (2008) (pdf)
DEA Agents Manual (2002) (download)
DOJ Computer Search Manual (2009) (pdf)
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
Privacy Foundation
Electronic Frontier Foundation
NACDL’s Domestic Drone Information Center
Electronic Privacy Information Center
Criminal Appeal (post-conviction) (9th Cir.)
Section 1983 Blog"If it was easy, everybody would be doing it. It isn't, and they don't."
—Me“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"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: Probable cause
S.D.Tex.: BOLO that matched defendant’s car was RS for stop
A BOLO that matched defendant’s car was reasonable suspicion for a stop. United States v. Yanez, 2022 U.S. Dist. LEXIS 6376 (S.D.Tex. Jan. 12, 2022). Cell phone communication and text messages about drug deals with the defendant gave probable cause … Continue reading
D.Conn.: Arrest warrant permitted entry into def’s house to attempt to locate him
Defendant was on the lam, and officers, armed with an arrest warrant, entered his house thinking he’d returned there. He wasn’t but observations were made that led to a search warrant for the house. Motion to suppress denied. The arrest … Continue reading
CA2: Def’s possession of multiple cell phones and drugs packaged for street sale created inference more in hotel room
The search of defendant’s person produced multiple cell phones and drugs packaged for street-level sale. There was a fair probability there would be more in his hotel room since drug dealers usually have a base of operations. United States v. … Continue reading
N.D.Cal.: PC in the affidavit was lacking, even with its detail; no GFE either
The affidavit for the search warrant for defendant’s place lacked probable cause. “As the affidavit did not establish probable cause as to forgery or possession of stolen property, and the government conceded there was not probable cause to support the … Continue reading
MA: Late disclosure of product of search wasn’t exculpatory so no prejudice
Defendant sought in discovery the call log from the search of his cell phone. The state didn’t provide it timely. It was not exculpatory in trial counsel’s view because it contradicted the defense witnesses and whatever defense they had for … Continue reading
NY1: Where seized evidence wasn’t used at trial, it’s moot
Defendant’s Fourth Amendment argument on appeal is moot. The evidence he complains was wrongly seized wasn’t used at trial. People v. Gordon, 2022 NY Slip Op 00055, 2022 N.Y. App. Div. LEXIS 63 (1st Dept. Jan. 6, 2022). The omitted … Continue reading
N.D.Ill.: Stopping work on the traffic ticket when the drug dog arrived resulted in lengthening the detention without RS
“Officer Allen admits that he was not printing the police department’s copy of the first citation or processing the second citation during the drug sniff. Rather, he completely stopped his traffic-related mission as soon as Officer Wiebe arrived and worked … Continue reading
N.D.Fla.: § 2241 habeas can’t be used to review another USDJ’s denial of a motion to suppress
A defendant can’t use a 2241 habeas as a way to appeal denial of a motion to suppress by another district judge. Butler v. Cook, 2021 U.S. Dist. LEXIS 247876 (N.D.Fla. Nov. 30, 2021). Controlled buys from defendant a few … Continue reading
PA: With MMJ, smell of MJ from a car alone is not PC for a vehicle search
Pennsylvania is a medical marijuana state. “Like the Superior Court, we hold that the smell of marijuana may be a factor, but not a stand-alone one, in determining whether the totality of the circumstances established probable cause to permit a … Continue reading
TN: Even if a viable motion to suppress existed, it was reasonable strategy to work a plea deal considering all the evidence of guilt
Defense counsel wasn’t ineffective for not filing a suppression motion and working a plea deal instead. First, with the mountain of evidence against defendant, it was wise to work out a deal and avoid sentencing after trial for sexual assault … Continue reading
W.D.La.: Where the search was valid under the automobile exception, the officer’s subjective assessment is irrelevant
“Here, the facts known to Broussard at the time of the search—Dyson’s prior arrest for the illegal possession of a firearm and drugs, and the smell of marijuana emanating from the vehicle during the present stop—support a Terry pat-down search … Continue reading
PA: PC needed for a child protection home inspection
The Department of Human Services needs probable cause for a child protection home inspection. In re Y.W.-B., 2021 Pa. LEXIS 4353 (Dec. 23, 2021):
NM: Tow and inventory of vehicle parked in owner’s driveway was unreasonable
The tow and inventory of the car defendant was driving, his grandmother’s, without a valid license was an abuse of the officer’s discretion. Here, the vehicle was parked in the grandmother’s driveway when the stop occurred. The officer’s practice of … Continue reading
Cal.3: Smell of burnt MJ from car not PC in California
The smell of burnt marijuana coming from a car in California isn’t probable cause. Blakes v. Superior Court, 2021 Cal. App. LEXIS 1057 (3d Dist. Nov. 24, 2021) (published Dec. 16, 2021). Officers had probable cause for the automobile exception … Continue reading
D.Idaho: Fact of app on cell phone that deletes photos when viewed doesn’t undermine PC for them
The court issued a search warrant for defendant’s cell phone for photographs of nude minors. The fact he had an account that allegedly deleted pictures when they were viewed doesn’t undermine the probable cause. United States v. Young, 2021 U.S. … Continue reading
E.D.Mich.: Finding drugs on person during traffic custodial arrest permits vehicle search
Defendant’s stop was valid because the LPN was expired. While that proved to be untrue, the officer also learned early on the car was uninsured. With defendant arrested, the officer searched his person finding cocaine. That authorized a search of … Continue reading
S.D.Ohio: Alleged 4A violation doesn’t create a lack of subject matter jurisdiction
A Fourth Amendment violation in a case, among other things, does not create a lack of jurisdiction. Forrest v. United States, 2021 U.S. Dist. LEXIS 232495 (S.D.Ohio Dec. 6, 2021). [Prospective clients still ask this here, as little as a … Continue reading
CA7: Malicious prosecution case is based on a lack of PC
Malicious prosecution claim is ultimately based on a lack of probable cause. Summary judgment here inappropriate. Gupta v. Melloh, 2021 U.S. App. LEXIS 35934 (7th Cir. Dec. 6, 2021):
IL: Lack of PC to arrest voids search incident to it
A lack of probable cause to arrest leads to voiding the search incident to arrest. People v. Freeman, 2021 IL App (1st) 200053, 2021 Ill. App. LEXIS 655 (Dec. 6, 2021). While marijuana seeds and stems aren’t federal contraband, searching … Continue reading
