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ABA Journal Web 100, Best Law Blogs (2017); ABA Journal Blawg 100 (2015-16)
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© 2003-21,
online since Feb. 24, 2003
WebPage Visits: real non-robot hits since 2010; approx. about 30,000 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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Briefs online (but no amicus briefs)
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General (many free):
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www.fd.org
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
Privacy Foundation
Electronic Frontier Foundation
NACDL’s Domestic Drone Information Center
Electronic Privacy Information Center
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: Ineffective assistance
FL1: Def’s setting up date via cell phone app where he sexually battered victim led to PC for SW for his cell phone
Defendant’s victim claimed to the police she was met through a phone app, sexually battered, and robbed. She identified defendant by his truck. “This information would have been enough to obtain a search warrant of Ferguson’s cell phones, even without … Continue reading
N.-M.: “Health and welfare” check justification for search of off-base housing was shown in IAC claim to be subterfuge
Defense counsel was ineffective for not raising the issue that the “health and welfare” check justification for searching his off-base housing was really a subterfuge for a criminal search. United States v. McCall, 2021 CCA LEXIS 206 (N.-M. Ct. Crim. … Continue reading
WI: Burning mj in a house is exigency of evidence being destroyed by burning
The smell of burning marijuana is exigent circumstances because the contraband is being destroyed by burning. State v. B.W.R., 2021 Wisc. App. LEXIS 201 (Apr. 28, 2021) (unpublished). Under Birchfield, “An increased penalty for the warrantless blood draw refusal revocation … Continue reading
MD: Not IAC for defense counsel to confirm witness testimony before filing motion to suppress; which here didn’t matter
Defendant contended the search of his place was before the warrant issued at 12:01 am March 1st. It was not ineffective assistance for counsel to attempt to talk to witnesses before filing a motion to suppress. Even if the police … Continue reading
M.D.Pa.: Calling for backup before asking motorist for consent was the “Rodriguez moment” but it was with RS
“‘[T]he proper inquiry is not whether a traffic violation actually occurred, but rather whether there are facts presented that would lead a reasonable officer to believe that a violation may have occurred.’ … ‘This standard is not particularly rigorous, as … Continue reading
CA11: Assuming geo-location info for def’s cell phone was illegally obtained, it was harmless BRD
“We assume without deciding that the district court erred in allowing the admission of the Google geo-location data during trial because it amounted to fruit of the poisonous tree, and no exception applied. Nevertheless, Pendergrass is not entitled to a … Continue reading
D.Neb.: CI report led to controlled buy and that was PC
A CI with a reliable track record reported defendant was selling ecstacy. That alone was likely at least reasonable suspicion, but then police used him to make a controlled buy, and that was probable cause for the stop. United States … Continue reading
E.D.Mo.: Constitutionality of window tint statute doesn’t have anything to do with PC for a stop for overtinting
Even if Missouri’s window tint statute was unconstitutional, something in doubt, it wouldn’t have any affect on the reasonableness of defendant’s stop for violating it, and the exclusionary rule would not apply. Factually, the officer said he couldn’t see into … Continue reading
W.D.Ky.: Out past curfew during BLM protests was PC for stop
Officers seeing defendant driving during a BLM protest curfew in June 2020 in Louisville had probable cause for the stop. United States v. Shrivers, 2021 U.S. Dist. LEXIS 77047 (W.D. Ky. Apr. 21, 2021).* A CI with a reliable track … Continue reading
GA: Valid strategic choice to forego search claim to support defense
Involving pre-Carpenter CSLI, the defense had valid strategic reasons to forego a motion to suppress to support the defense arguments at trial. “Because we hold that Thomas’s trial counsel did not perform deficiently because she had a reasonable strategic purpose … Continue reading
D.Minn.: Because tracking order affiant was fired for falsifying other tracking requests doesn’t mean this one was false when def can’t show anything
Defense counsel wasn’t ineffective for not challenging the tracking warrant in defendant’s case based on the fact the officer who got it was fired for falsifying other tracking orders. “Bettis alleges that his counsel was ineffective by failing to challenge … Continue reading
IL: CSLI 11 years before Carpenter obtained in good faith
CSLI data obtained 11 years before Carpenter was obtained in good faith at the time and would not be suppressed. People v. Potts, 2021 IL App (1st) 161219, 2021 Ill. App. LEXIS 166 (Mar. 31, 2021). Defense counsel was not … Continue reading
DE: Wiretap info in affidavit for SW showed nexus to cell phone
The affidavit showed probable cause for the search warrant, and nexus to his cell phone and the crime under investigation is shown in a wiretap. Anderson v. State, 2021 Del. LEXIS 121 (Mar. 30, 2021).* Defendant did not show a … Continue reading
E.D.N.Y.: Summons to appear is not a 4A seizure
A summons to appear is not a seizure. Jianjun Li v. Village of Saddle Rock, 2021 U.S. Dist. LEXIS 60705 (E.D. N.Y. Mar. 30, 2021). New York statute that special prosecutors have to give notice to elected DAs about, inter … Continue reading
DE: Defense counsel’s letter to client why 4A claim would fail shows def would never prevail
“Turning to Stokes’ claim that trial counsel was ineffective for failing to investigate his case and make various arguments on his behalf, the record refutes this claim. First, it is clear that trial counsel carefully considered filing a motion to … Continue reading
TX5: Lack of a timely return doesn’t warrant suppression despite mandatory language of statute
A lack of return isn’t a basis for suppression. “Although the requirements set forth in this provision of the code of criminal procedure appears to be mandatory, courts have consistently held that ministerial violations of the search warrant statutes do … Continue reading
CT: Both halves of a duplex can’t be searched under a warrant for one
A search of both halves of a duplex under a search warrant for one was unreasonable and had to be suppressed. State v. Lyons, 2021 Conn. App. LEXIS 100 (Mar. 30, 2021). Defense counsel wasn’t ineffective for not challenging the … Continue reading
NY3: CI’s alleged false statement wasn’t enough to suppress
As to an alleged false statement by the CI, it didn’t undermine the probable cause finding. People v. Cazeau, 2021 NY Slip Op 01806, 2021 N.Y. App. Div. LEXIS 1947 (3d Dept. Mar. 25, 2021) (nearly four years from judgment … Continue reading
TX5: SW to seize blood for BAC also allows analysis
Texas already settled the issue that a search warrant to take blood implicitly includes the ability to test it. State v. Armstrong, 2021 Tex. App. LEXIS 2162 (Tex. App. – Dallas Mar. 22, 2021).* The stop was reasonably extended because … Continue reading
