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- VI: Wife had apparent authority to consent to search for firearm in bedroom, even if they didn’t share it
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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)
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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: Franks doctrine
CA10: A Franks violation can’t be based on information that had not been discovered yet
The affidavit showed probable cause. And, “Detective Ames did not knowingly or recklessly omit exculpatory information from the affidavit because she was not aware of any such information when she prepared the affidavit.” Weidner v. McHale, 2025 U.S. App. LEXIS … Continue reading
CA2: 50 days of pole camera surveillance outside a business wasn’t unreasonable search
A pole camera outside defendant’s business for 50 days was not an unreasonable search. United States v. Harry, 2025 U.S. App. LEXIS 5329 (2d Cir. Mar. 7, 2025). Defendant was improperly denied a hearing. The codefendant had a suppression hearing … Continue reading
E.D.Cal.: 27-page SW affidavit was sufficient and didn’t have to include every detail
The affidavit for warrant was 27 pages long and it omitted a lot of detail, but that’s not enough to show a Franks violation. Every detail doesn’t have to be included, and the omissions here don’t undermine the probable cause … 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
NY1: SW misdescription of place to be searched not adequately resolved below; remanded
Defendant’s motion to suppress based on an apparent misdescription of the place to be searched wasn’t resolved below, so the case is remanded for further development. People v. Trulove, 2025 NY Slip Op 01178, 2025 N.Y. App. Div. LEXIS 1170 … Continue reading
CA5: Officer’s responding to “open structure call” and entering was reasonable as community caretaking function
“When Dean responded to the ‘open structure call’ he was performing a community caretaking function. Community caretaking functions are ‘totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.’ … Here, even … Continue reading
CA4: Withheld discovery information about CIs in SW affidavit justified setting aside guilty plea
Defendant’s guilty plea is set aside as a due process as a result of the government withholding information about a second CI in the search warrant papers where the first couldn’t identify him. When the government made a later 775-page … Continue reading
legalai.com: Evidence Excluded In Murder Case for Failure to Disclose AI Use [from apparent Franks violation]
legalai.com: Evidence Excluded In Murder Case for Failure to Disclose AI Use by Dean Taylor (Feb 17, 2025). The affidavit for warrant obscured that facial recognition powered by AI was used to identify the accused, stating in the motion to … 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
OR: Officer’s use of a flashlight to facilitate a plan view at night was reasonable
The officer’s use of a flashlight to facilitate a plan view at night was reasonable. State v. Starr, 337 Or. App. 682 (Feb. 12, 2025).* There was probable cause to believe blood on the cell phone was defendant’s justifying the … Continue reading
CA8: False statement van was “secured” was based on secondhand information and was neither material or reckless
The officer’s statement that defendant’s van was “secured” was not sufficient false and misleading to even be reckless. The officer was passing on information from other officers about the van, but the windows were missing and it was accessible. United … Continue reading
OH5: RS permits putting def into a patrol car to maintain the status quo
Officers had reasonable suspicion to initiate a brief investigative stop of defendant based on the totality of the circumstances, including the citizen’s tip, the late hour, the location, and the defendant’s suspicious behavior upon seeing them. Placing him in the … Continue reading
CA11: Potential new Franks violation not enough for third successor habeas
This is petitioner’s third successor habeas attempt. This one claims new information might make a Franks violation. Except that it doesn’t qualify for permission to proceed as a successor. In re Obeginski, 2025 U.S. App. LEXIS 2806 (11th Cir. Feb. … Continue reading
CA5: There was enough here to support GFE; Franks challenge failed
There at least was some showing of probable cause for the warrant here and the good faith exception applies. He also argued a Franks violation for a misstated fact, but even the best spin on that supports materiality and probable … Continue reading
OH5: Drug dog officer’s touching car to redirect dog wasn’t a search
The officer’s briefly touching the vehicle’s exterior to redirect the canine’s focus did not constitute a search. The dog’s certification and training were sufficient to establish its reliability, absent conflicting evidence from the defendant. This traffic stop was not unconstitutionally … Continue reading
CA8: Drugs on person admissible under 404(b) despite being outside indictment
Drugs on defendant’s person at the time of arrest were admissible under 404(b) despite being outside the time of the indictment. United States v. Hodo, 2025 U.S. App. LEXIS 1796 (8th Cir. Jan. 28, 2025). Defendant was on supervised release … Continue reading
GA: SW for blood BAC doesn’t also allow search for drugs
A search warrant for blood BAC doesn’t also allow search for drugs. State v. Johnson, 2025 Ga. App. LEXIS 18 (Jan. 28, 2025). Defendant was on supervised release and the search of his cell phone producing child pornography was reasonable. … Continue reading
E.D.Mich.: Civil Franks violation was “well established” and QI denied
Plaintiff was arrested for child sexual abuse. The child recanted, and the prosecutor involved was disbarred for misconduct in this case. Plaintiff’s claim for a Franks violation was well established by 1978, and qualified immunity denied. MacMaster v. Busacca, 2025 … Continue reading
NY Queens: Stop based solely on car description wasn’t with RS
Defendant’s vehicle was stopped solely because of its make and color with no other justification, and thus lacking reasonable suspicion. People v. Mitchell, 2025 NYLJ LEXIS 261 (Queens Co. Jan. 22, 2025).* The use of force here on a food … Continue reading
VI: Multiple falsities about CI made successful Franks challenge
Defendant succeeded in his Franks challenge on misleading statements about the CI as an observer rather than participant in the crime and the affidavit lacked corroborating investigative facts and omitted information about W1’s lies. All this was material to the … Continue reading