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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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--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: Franks doctrine
CA10: Evidence obtained by state in prosecution later barred by McGirt still with good faith
Defendant was originally prosecuted in Oklahoma state court for murder. After McGirt v. Oklahoma, he moved to set aside the Oklahoma conviction as being obtained without jurisdiction. In federal court, he moved to suppress the evidence obtained by the state … Continue reading
D.Kan.: Cross-designated state-federal officer was “federal officer” for assault charge during execution of SW
Assaulting a state officer cross-designated as a federal officer qualified for assaulting a federal officer during execution of a search warrant. United States v. Butler, 2024 U.S. Dist. LEXIS 36172 (D. Kan. Mar. 1, 2024). The state courts did not … Continue reading
CA11: CoA granted on 2255 4A claim based on alleged prosecutorial misconduct
2255 appellant gets a certificate of appealability for the district court’s possible misapprehension of the Fourth Amendment issue he raised which included a prosecutorial misconduct claim. Jones v. United States, 2024 U.S. App. LEXIS 4629 (11th Cir. Feb. 27, 2024):
C.D.Cal.: Franks challenge succeeds in FIPF case
The search warrant for felon in possession was based on the officer affiant’s assertion defendant was a convicted felon but it was based on evaluation of paperwork from Georgia that showed he was a first offender without judgment of guilt … Continue reading
OH2: Allegation that search occurred before SW issued is not a Franks issue
“A second problem is that the foregoing scenario does not raise a Franks issue. If Detective Saunders did prematurely enter the house without a warrant, he may have violated the Fourth Amendment. But that act would not establish any falseness … Continue reading
WV: Police looking at the exterior of defendant’s car was not a search and violated no REP
Police looking at the exterior of defendant’s car was not a search and violated no reasonable expectation of privacy. State v. Estep, 2024 W. Va. LEXIS 92 (Feb. 20, 2024).* The trial court granted a Franks motion, but the state … Continue reading
KY: Misstatements of law not subject to Franks challenge
A misstatement of law is not subject to a Franks challenge. Search warrant affidavits are usually drafted in a hurry by nonlawyers, and it’s up to the issuing magistrate to decide whether there is a substantial basis for believing a … Continue reading
DE: Def can’t show vindictive prosecution to get names of those who allegedly provided false information to police for SW of public records
In a case involving a public official accused of misappropriating funds, there was a search warrant for office records. She claimed she was entitled to the names of those who might have provided false information to investigators for the warrant … Continue reading
FL2: Suppression under Franks reversed; not material to PC
Defendant established that there were false statements in the affidavit for warrant that ran the full spectrum from negligence to likely intentionality. But probable cause remained, even excluding what was challenged. “While the temptation to advance the prophylactic purpose of … Continue reading
E.D.Cal.: Affidavit for SW for def being a prohibited person for firearms possession doesn’t have to allege interstate commerce nexus
A warrant was issued for defendant’s home in California for proof of travel to the Jan. 6 riot at the Capitol. Officers found firearms and defendant was a prohibited person because of domestic violence orders. On the firearms warrant, it … Continue reading
CA8: Failure to mention CI’s convictions or payments for information wasn’t material
The warrant affiant’s failure to mention the CI was paid or had convictions wasn’t material to change the outcome of the probable cause determination. With CIs, things like that can be assumed. United States v. Riaski, 2024 U.S. App. LEXIS … Continue reading
N.D.Cal.: Failure to pursue alleged traffic violation made stop unreasonable
Defendant was stopped ostensibly for a traffic violation, and he was handcuffed and the officers literally did nothing to investigate that–they didn’t even ask for his license and registration. Despite the fact Whren says pretext doesn’t matter, that lack of … Continue reading
IA: RS: “cries of ‘please help me, don’t hurt me’ could lead an officer to infer that an assault is taking place”
Caller’s “cries of ‘please help me, don’t hurt me’ could lead an officer to infer that an assault is taking place.” That was reasonable suspicion. State v. Sinclair, 2024 Iowa App. LEXIS 74 (Ct. App. Jan. 24, 2024). “Cordova argues … Continue reading
SD: Failure to put SW materials in record means trial court presumed correct
There were two search warrants for location data and defendant’s cell phone. Without the search warrant materials in the appellate record, there’s nothing to review and the trial court is assumed to be correct. State v. Horse, 2024 S.D. 4, … Continue reading
D.Me.: SW affidavit mentioned a licensing complaint against defendant doctor, but omission that the complaint was resolved favorably gets a Franks hearing
Defendant is a D.O. accused of over prescribing. She made her substantial preliminary showing to get a Franks hearing because the affiant omitted from the affidavit for warrant that the licensing authority considered the same claims and found she acted … Continue reading
CA7: SW affidavit omitted things but it wasn’t intentionally or recklessly misleading
The affidavit was lacking some important information, but it was not intentionally or recklessly misleading to the issuing magistrate. Thus, defendant’s Franks challenge fails. United States v. Hueston, 2024 U.S. App. LEXIS 832 (7th Cir. Jan. 12, 2024):
LA2: Anonymous report of man with a gun without some other possible crime is not RS
An anonymous tip that a man had a gun wasn’t reasonable suspicion. There was no report of any crime being committed at the time. State v. McCall, 2024 La. App. LEXIS 27 (La. App. 2 Cir. Jan. 10, 2024). Defendant … Continue reading
CA11: Austrian SW executed in Austria couldn’t be questioned here under “act of state” doctrine
Plaintiff, apparently while in the United States, had his property in Austria searched by Austrian authorities with an Austrian search warrant. [Aside from what jurisdiction is there here?,] The “act of state” doctrine prohibits a U.S. court from questioning the … Continue reading
TX1: Arrest on PC when standing next to vehicle justified its search incident
Defendant’s arrest for a parole violation while he was standing next to his vehicle resulted in a search of the person finding drugs, and that justified a search incident of the vehicle, too. Badyrka v. State, 2024 Tex. App. LEXIS … Continue reading
N.D.Iowa: Police car pulling up with activated blue and red lights wasn’t necessarily a seizure; here, it is not
“I conclude that a law enforcement officer’s activation of red and blue emergency does not, by itself, establish a seizure for Fourth Amendment purposes. However, it is a factor that weighs in favor of finding a seizure. Certain other facts … Continue reading