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- Cal.1st: Minor in possession of MJ is PC for search of car
- D.P.R.: Def waived his Franks by providing nothing to show what’s what
- D.Nev.: Exclusionary rule does not apply to IRS violating its operations manual
- D.Utah: Drug dog arriving within 7 minutes was reasonable and part of the initial stop
- D.Kan.: Preliminary hearing moots claim of lack of PC for arrest
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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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--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: Probable cause
NY: No RS where two men talked car-to-car and then moved, and one leaned in other car; nothing seen passed
There was no reasonable suspicion to stop and detain defendant for what the officer thought could have been a hand-to-hand drug transaction where he saw nothing exchanged. Defendant stopped along side another car facing in different directions, and they talked … Continue reading
FL6: Trial court erred by de novo review of SW application
The trial court conducted a de novo review of the search warrant application, not seeing whether there was a substantial basis for finding probable cause. This was error. State v. Freeman, 2024 Fla. App. LEXIS 115 (Fla. 6th DCA Jan. … Continue reading
OH2: Municipal Court can’t issue SW for out-of-state records
An Ohio municipal court does not have authority to issue a search warrant for collection of records from out of state. State v. Worthan, 2024-Ohio-21, 2024 Ohio App. LEXIS 33 (2d Dist. Jan. 5, 2024). Defendant approached the officers and … Continue reading
OH1: Intercepted jail call led to def’s arrest and search when he showed up at co-def’s house to move drugs
Jailers intercepted a jail call between an inmate and a confederate outside who was told to move the drugs from his house. Police surveilled the house. When defendant showed up with a backpack and came out of the house, there … Continue reading
D.Minn.: SW arguably included use of cell site simulator to track phone; GFE applied in any event
The state issued warrant here authorized the use of a cell site simulator, but this wasn’t explicitly stated in the affidavit for warrant. And, the affidavit wasn’t incorporated into the warrant either. This is a close question. The court comes … Continue reading
D.Neb.: A SW affidavit is evaluated for PC based on what it contains, not what it lacks
A search warrant affidavit is evaluated for probable cause based on what it contains, not what it lacks. United States v. Daigle, 947 F.3d 1076, 1081 (8th Cir. 2020). Moreover, the good faith exception applies. There was enough information to … Continue reading
D.P.R.: Probation search can precede arrest
Defendant’s probation officer was not a “stalking horse” for the police in this probation search. They both had their reasons for the search. Following most of the circuits addressing the issue, the search can precede the arrest. United States v. … Continue reading
E.D.Mich.: Typo in affidavit for SW doesn’t support Franks challenge
Defendant’s Franks challenge fails. “At the hearing, Hill presented nothing to establish that this inconsistency was anything other than a negligent typographical error. While he maintained that the affidavits were riddled with falsehoods, he was unable—despite repeated questioning—to pinpoint any … Continue reading
S.D.N.Y.: Policy directive for criminal court appearance strip searches presumptively public and not sealed
This is litigation over strip searches of detainees coming into the Manhattan Criminal Court building for court. A policy directive from another case litigated in 2018 is pertinent. The presumption of access to public records applies, and the directive will … Continue reading
D.Mass.: No PC here, and government’s GFE argument is generic and unhelpful
The affidavit for warrant here failed to show probable cause to believe a pill manufacturing operation would be found there. There was old information in the affidavit, but it was stale on its own. Also, defendants moved in the meantime … Continue reading
OH2: Pinging cell phone of suspect shortly after homicide was exigent
Pinging defendant’s cell phone to try to find him after he had shot three people seven hours apart was with exigent circumstances. This is already settled in this state. State v. Smith, 2023-Ohio-4565, 2023 Ohio App. LEXIS 4389 (2d Dist. … Continue reading
CA8: Truly bare bones affidavit for SW fails on GFE
Defendant here actually showed that the affidavit for search warrant was completely lacking in even an inference that defendant might have stolen property on his property. He was located nearby the primary offender, and his criminal history said nothing about … Continue reading
N.D.Okla.: A Terry stop can occur for civil infractions
A Terry stop can occur for noncriminal offenses, such as traffic citations. Here it was for vaping in the wrong place. United States v. Perez, 2023 U.S. Dist. LEXIS 218640 (N.D. Okla. Dec. 8, 2023). Volunteering one is armed “when … Continue reading
D.P.R.: Cell phone records obtained by SW not self-authenticating as evidence under 902(11)
Cell phone records obtained by warrant are not self-authenticating under F.R.E. 902(11). More will be required. United States v. Charbonier-Laureano, 2023 U.S. Dist. LEXIS 218249 (D.P.R. Dec. 5, 2023). The government’s knowledge fraud co-conspirators communicated by cell phone during period … Continue reading
NY1: Def’s Franks challenge denial and 7 year sentence summarily affirmed 7½ years later
“Defendant’s request for a Franks hearing was properly summarily denied. He failed to make a ‘substantial preliminary showing’ that the purported statements he made to his wife and at the precinct relating to his ownership of the vehicle were false … Continue reading
OH5: Put the affidavit for SW in the record at the suppression hearing
The affidavit for search warrant isn’t in the record on appeal, so the court presumes the regularity of proceedings in the trial court. The record that was made shows that there was probable cause. State v. Hill, 2023-Ohio-4381, 2023 Ohio … Continue reading
E.D.Cal.: Possession of enough to be a MJ distributor was PC even in a legal use state
The stop was justified because the taillights were “smoked out” and one couldn’t adequately see them. During the stop, the officer smelled marijuana, but he didn’t act on that alone. He asked questions, saw the medical marijuana card, but he … Continue reading