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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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To search Search and Seizure on Lexis.com $Research Links:
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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
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NACDL’s Domestic Drone Information Center
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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: Franks doctrine
D.Minn.: Tracking warrant issued without PC, but GFE still applied
There was no probable cause for the tracking warrant for defendant. But, it was not so lacking in probable cause that the good faith exception does not apply. United States v. Escudero, 2022 U.S. Dist. LEXIS 89120 (D.Minn. May 18, … Continue reading
CA7: Despite govt’s not raising abandonment, the court finds it anyway
The government conceded no abandonment and sought other exceptions to the warrant requirement. The court of appeals finds abandonment anyway because the record is clear. In addition, an allegation of a Franks violation fails without alleging that probable cause does … Continue reading
N.D.Ga.: Pro forma objection to R&R doesn’t articulate argument, so it’s waived
Defendant didn’t fairly articulate his objections to the R&R, so his objection is waived. United States v. Hill, 2022 U.S. Dist. LEXIS 83707 (N.D.Ga. May 9, 2022). There was probable cause for this search authorization, and the good faith exception … Continue reading
CA10: “[N]o exclusionary rule for evidence gained through … entrapment”
“[T]here is no exclusionary rule for evidence gained through conduct later deemed to be entrapment.” United States v. Christian, 754 Fed. Appx. 747, 750 (10th Cir. 2018). United States v. Christian, 2022 U.S. App. LEXIS 12255 (10th Cir. May 6, … Continue reading
D.Md.: Def gets a hearing on a Franks challenge to a red-flag SW that produced 42 firearms
Maryland provides for “Extreme Risk Protective Orders” (“ERPO”) to seize firearms from unstable persons. [These are know as red-flag laws in some other states.] “The ERPO law establishes a framework by which persons found to pose an immediate danger to … Continue reading
CA9: Police participation in a probation search didn’t make it unreasonable
Homeland Security Investigations participating in a probation search did not make it unreasonable. United States v. Johnson, 2022 U.S. App. LEXIS 11999 (9th Cir. May 3, 2022). Defendant claims a Franks violation from a single misstatement in the affidavit for … Continue reading
MO: Telling def to “stay right there” and “sit down” was a seizure
Telling defendant to “stay right there” and “sit down” was a seizure, and here it was with reasonable suspicion. State v. Higgs, 2022 Mo. App. LEXIS 274 (May 3, 2022).* Probable cause was shown: “A reasonable judge could, and did, … Continue reading
S.D.Cal.: 4A violations are for suppression, not dismissal
“Searches and seizures in violation of the Fourth Amendment do not require dismissing an indictment; instead, the remedy is suppressing the evidence at trial.” United States v. Ramirez-Aleman, 2022 U.S. Dist. LEXIS 77436 (S.D.Cal. Apr. 26, 2022). Defendant officers have … Continue reading
CA6: Auto exception applies even where driver is detained
A vehicle is mobile for the automobile exception even though the driver is detained. United States v. Washington, 2022 U.S. App. LEXIS 11511 (6th Cir. Apr. 28, 2022). A bald tire in the back of a rental truck was so … Continue reading
Cal.: Exclusionary rule does not apply in child dependency litigation
The exclusionary rule does not apply in child dependency litigation. In re Christopher L., 2022 Cal. LEXIS 2313 (Apr. 25, 2022) (recognizing rule). “Hecke is correct that Detective Compton did not provide details of BSC’s criminal history or a description … Continue reading
N.D.Ala.: Imprecision in the SW affidavit isn’t a Franks violation
Imprecision in the affiant investigator’s words doesn’t equate to recklessness for Franks purposes. United States v. Tubbs, 2022 U.S. Dist. LEXIS 73473 (N.D.Ala. Mar. 14, 2022).* Defendant’s alleged Franks violation wasn’t even material based on all the evidence that the … Continue reading
CA8: Court can consider GFE rather than decide PC
“‘[T]his Court ‘may consider the applicability of the good-faith exception to the exclusionary rule,’ without addressing whether probable cause exists.” Here, there was enough to likely show probable cause so the officer reasonably believed in the validity of the warrant. … Continue reading
Three on Franks
This Franks argument fails. “Here, there is no indication that any false statement was intentionally, or with reckless disregard for the truth, included in the affidavit. Even assuming the information provided by the CI was false or misleading, there is … Continue reading
CA6: All family members have common authority over common areas of the house
All family members have common authority over common areas of the house. United States v. Campany, 2022 U.S. App. LEXIS 9518 (6th Cir. Apr. 8, 2022). Defendant’s Franks claim for ineffective assistance of counsel fails for failing to show what … Continue reading
D.N.J.: That officers could have investigated more isn’t a Franks violation
“None of these allegations is sufficient to warrant a Franks hearing either. At bottom, Rodriguez is merely criticizing the tactics employed by the police during their investigation. See United States v. Swanson, 210 F.3d 788, 791 (7th Cir. 2000) (explaining … Continue reading
N.D.Okla.: Officer’s testimony of traffic offense wasn’t believed based on his words on video
“Considering the totality of the circumstances, the Court finds that Phillips’ testimony that he observed a lane violation prior to initiating a traffic stop is not credible. The only evidence tending to support the commission of a traffic violation is … Continue reading
VA: Firefighters could call ME and police for dead body
When firefighters entered defendant’s property in response to a fire call, they found a body. It was within the scope of the fire entry to call the police and medical examiner. “Thus, all that the firefighters observed was no longer … Continue reading
CA8: Car seizure for overtinting and inventory were reasonable
Defendant’s car was permissibly seized for overtinting, and the subsequent search was reasonable as inventory. United States v. Perez, 2022 U.S. App. LEXIS 8697 (8th Cir. Apr. 1, 2022).* “Even assuming arguendo that Thrasher could make a substantial preliminary showing … Continue reading
CA7: Def’s detention during protective sweep looking for another was unreasonable
Defendant’s detention in an apartment building during a protective sweep for a fugitive that clearly wasn’t him was unreasonable. The district court’s denial of the motion to suppress is reversed. United States v. Segoviano, 2022 U.S. App. LEXIS 8771 (7th … Continue reading
