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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© 2003-23,
online since Feb. 24, 2003 Approx. 350,000 visits (non-robot) since 2012 Approx. 45,000 posts since 2003 (25,700+ on WordPress as of 12/31/22)~~~~~~~~~~~~~~~~~~~~~~~~~~
Fourth Amendment cases,
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Federal Law Enforcement Training Center Resources
FBI Domestic Investigations and Operations Guide (2008) (pdf)
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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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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"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!”
"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
IL: Circumstances made SW affidavit admissible at trial
The trial court abused its discretion in not permitting the defense to use the search warrant affidavit at trial that showed the warrant was targeting another person for other things other than what was found. The court cautions this may … Continue reading
W.D.Ky.: Search warrant affiant’s reference to water emoji wasn’t false or misleading; it here referred to meth, not sex
Defendant’s Franks motion fails. Defendants’ use of a water emoji could have been a reference to sex, but it could also be a reference to methamphetamine, as has come up in police training and in other cases such as United … Continue reading
D.N.J.: Civilly committed for NGBRI verdicts have no 4A rights in their cells
The civilly committed for NGBRI verdicts have no Fourth Amendment against cell searches. Lopez v. CEO of Ancora Psychiatric Hosp., 2023 U.S. Dist. LEXIS 12248 (D.N.J. Jan. 24, 2023), citing Glazewski v. Barnett, 2022 WL 2046921, at *3-4 (D.N.J. June … Continue reading
M.D.Ga.: Officer isn’t obliged to mention he could smell marijuana coming from the car
An officer smelling marijuana in a car isn’t obliged to tell the motorist he could for it to be true. United States v. Perkins, 2023 U.S. Dist. LEXIS 10564 (M.D. Ga. Jan. 19, 2023). At worst, the officer’s false statement … Continue reading
S.D.N.Y.: Pending recalculation of time on parole didn’t affect legality of parole search
Defendant’s state remaining parole time was subjected to recalculation but it hadn’t happened by the time of the parole search based on a tip he had a firearm. Therefore it was reasonable. Alternatively, it was by consent. United States v. … Continue reading
DE: State habeas not for 4A claims
A state habeas petition is not how one presents a Fourth Amendment claim. Chrisden v. State, 2023 Del. LEXIS 17 (Jan. 13, 2023). Defendant’s traffic stop was factually justified. The smell of marijuana and his admissions gave probable cause to … Continue reading
CA6: Water heard running in hotel room bathroom supported exigency for avoiding destruction of evidence
Water heard running in the bathroom of a hotel room justified entry to avoid potential destruction of evidence. United States v. Hill, 2023 U.S. App. LEXIS 785 (6th Cir. Jan. 11, 2023). Defendant’s Franks challenge doesn’t undermine the two critical … Continue reading
IA: State failure to object to lack of Franks preliminary showing results in hearing, but def fails anyway
Defendant got a Franks hearing without an adequate showing, and the state didn’t object. So the court of appeals considers the showing at the hearing over the state’s objection, and defendant fails to show recklessness or intentional false statement or … Continue reading
D.N.J.: No 6A right to have counsel present at execution of a DNA warrant in the jail
There is no Sixth Amendment right for counsel to be present when a DNA sample is taken from defendant at the jail by warrant. United States v. Hubbard, 2023 U.S. Dist. LEXIS 3661 (D.N.J. Jan. 9, 2023). CBP had reasonable … Continue reading
CA7: Ptf’s civil Franks claim survives SJ because it stated a claim
“Here, a reasonable jury could find that Buonadonna intentionally or recklessly included material false statements and withheld material exculpatory information. Buonadonna admits that he read the protective order and knew that it did not bar communication between Klein and Salatas. … Continue reading
CA6: Plastic bag on car console wasn’t obviously “dope” to justify automobile exception
The government argued that the search of defendant’s car was justified by the automobile exception because contraband was in plain view. The court disagrees. There was a plastic bag on the console, and the photographic evidence from inside the car … Continue reading
S.D.Ill.: Extrinsic evidence is admissible in a Franks challenge
Extrinsic evidence of alleged falsity in a Franks challenge is admissible. United States v. Smith, 2022 U.S. Dist. LEXIS 234002 (S.D. Ill. Dec. 20, 2022). Questioning defendant about the presence of a firearm in his vehicle fell within the Quarles … Continue reading
CA6: Affidavit circumstantially supported nexus
There was nexus to defendant’s home as a base of operations for drug sales based on circumstantial evidence in the affidavit for warrant. United States v. Pointer, 2022 U.S. App. LEXIS 35506 (6th Cir. Dec. 20, 2022).* The search warrant … Continue reading
N.D.Ill.: PC for admin. warrant became stale before it was sought
This administrative search warrant under OSHA became stale by the government’s delay in seeking it and litigation delays. Also, USMJs have jurisdiction to issue administrative inspection warrants. F.R.C.P. 72 objections do not apply to administrative warrants because they frustrate enforcement … Continue reading
WI: When statute or ordinance on which search was based is challenged, AG or city must be present
When challenging the constitutionality of an ordinance or statute as making a search and seizure unreasonable, defendant must join the city or notify the AG to participate. Without it, that’s waiver. “Because Raddemann has not shown compliance with Wis. Stat. … Continue reading
N.D.Cal.: Attic apt and treehouse not specified in SW, but searches there still reasonable
An attic apartment and a treehouse were not specifically within the terms of the warrant, but the search was still reasonable. United States v. Ayala, 2022 U.S. Dist. LEXIS 227976 (N.D. Cal. Dec. 19, 2022). Defendant didn’t timely challenge his … Continue reading
CA8: SW in CP case can include whole house, not just def’s room
In a child pornography case, the search warrant need not be limited to only defendant’s room. It can be the whole house. United States v. Schave, 2022 U.S. App. LEXIS 34757 (8th Cir. Dec. 16, 2022). Officers got a warrant … Continue reading
Cal.2: MJ smell associated with minors still RS for an offense
Officers ran an LPN and saw that the vehicle had expired tags. Driving next to the car, officers smelled burnt marijuana and knew that the users were minors which is still an offense under California law. That was cause for … Continue reading
TX14: PC for a cell phone requires more than a bare conclusion one was present or involved; no PC here
“A probable cause affidavit supporting a cell phone search must contain evidence of the requisite nexus with more than mere conclusory allegations. For example, the Court of Criminal Appeals recently held that generic, boilerplate language about cell phone use among … Continue reading
