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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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Section 1983 Blog -
"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: Warrant requirement
CA6: Detention with handcuffing on RS permitted putting def in police car
There was reasonable suspicion for defendant’s detention, including putting him in a police car while they sorted it out. That was not yet an arrest. United States v. Rogers, 2021 U.S. App. LEXIS 16160 (6th Cir. May 27, 2021). The … Continue reading
S.D.N.Y.: No precharge right of access to SW materials while investigation ongoing
The target of a search (here Rudy Giuliani) doesn’t have a precharge right of access to the materials where the investigation is ongoing. In re Search Warrants Executed on April 28, 2021, 2021 U.S. Dist. LEXIS 101348 (S.D. N.Y. May … Continue reading
C.D.Cal.: SW materials remain sealed because investigation is “undisclosed”
While generally subject to disclosure, search warrant materials here remain sealed for the time being because the investigation has not been disclosed. In re L.A. Times Communications, LLC, 2021 U.S. Dist. LEXIS 99766 (C.D. Cal. May 26, 2021). Disputed facts … Continue reading
S.D.Ohio: Govt doesn’t overcome right of access to seek to seal SW materials
The defense moved for access to search warrant materials for a potential motion to suppress. The government moved to seal them. The government’s motion is denied. There is generally a right of access in search warrant materials by the defendant … Continue reading
N.D.Ind.: Affidavit for SW doesn’t have to provide the particularity, but it can if incorporated
The search warrant here is directed at a place and it’s not required to tie a person to it, unless it aids particularity. The affidavit for the warrant does not need to be particular but the warrant itself does. The … Continue reading
WV: Emergency order of protection was not functional equivalent of SW for entry into home
Officers with an emergency order of protection used it to enter defendant’s house and seize firearms. The protections of the Fourth Amendment and the state constitution are greater. The order was not, then, the functional equivalent of a warrant, and … 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
D.Minn.: Pleading warrant process “irregularities” without showing anything prejudicial insufficient
Defendant’s perceived “irregularities” with the warrants raising “troubling and unanswered questions concerning the integrity of the warrant process” essentially invites the court to speculate where he doesn’t. The court won’t do that. United States v. Jones, 2021 U.S. Dist. LEXIS … Continue reading
NY, Westchester Co.: NY’s Red Flag law doesn’t violate 2A, 4A, 5A, 6A, or 14A
As to the Fourth: “This Court finds that the search conducted herein pursuant to the ERPO statute was reasonable. Contrary to respondent’s assertion, the petitioner provided a sworn statement as to the basis for his belief that respondent was recently … Continue reading
CA1: SWs are directed at places, too, and def didn’t need to be connected in the affidavit
Defendant made a Franks challenge. Removing the allegedly offending material still left probable cause. Defendant’s argument then was that the remainder still didn’t point to him, but that’s not the law: Search warrants are directed at places, too, not just … Continue reading
CT: Police knowledge def’s cell phone was used to communicate with co-conspirators and victim was justification for seizure then SW
There were exigent circumstances for seizure of defendant’s cell phone incident to his arrest and probable cause for a search warrant to search it. The police developed information that the conspirators communicated with the victim by phone before the crime. … Continue reading
CA3: Petition to revoke has to be based on a 4A showing of PC on oath or affirmation, and this was
The petition to revoke was based on probable cause and oath or affirmation and complied with the Fourth Amendment. United States v. Petlock, 2021 U.S. App. LEXIS 3865 (3d Cir. Feb. 11, 2021). Police responded to a suicide in progress … Continue reading
CA3: Crashing a fleeing car here wasn’t excessive force
Crashing a fleeing car here wasn’t unreasonable as excessive force. “Here, we agree with the District Court’s determination that no reasonable juror could find that the force used by Officer Biagini was excessive. It is beyond dispute that, in the … Continue reading
D.N.M.: M.R.E. 315 and 4A permit oral applications and search authorizations
M.R.E. 315 provides for search authorizations, and this one wasn’t an anticipatory warrant with conditions. Oral applications and authorizations are constitutionally proper per United States v. Brown, 784 F.2d 1033, 1036 (10th Cir. 1986). An Air Force regulation on the … Continue reading
CA8: Forgetting to get SW signed for a vehicle didn’t matter where there was PC
The officer prepared an affidavit and search warrant for a vehicle search and took the paperwork to a state judge. They forgot to get the warrant signed. The search was still valid because there was probable cause to search the … Continue reading
CO: Judicial officer who leaked info about SW he signed was censured, but only after removal from office, a federal obstruction conviction, and disbarment
The respondent former judge told a friend to avoid a certain person when a drug task force search warrant was signed by him for the target. He was federally charged and pled guilty to obstruction of justice and was disbarred … Continue reading
E.D.Wis.: Clerical error in attaching wrong SW to affidavit where there were more than one for def could be corrected
A clerical error in attaching the wrong affidavit to multiple search warrants for defendant’s property could be read through and corrected. As to the probable cause, the affidavits showed it and the good faith exception would apply. United States v. … Continue reading
OH6: File stamp time error on SW wasn’t subject to exclusionary rule
The file stamp on a search warrant was before the judge signed it. This, however, is just a clerical error, and that doesn’t void an otherwise valid warrant. The exclusionary rule shouldn’t apply to such errors. “The testimonial evidence was … Continue reading