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- techdirt: The Problems Of The NCMEC CyberTipline Apply To All Stakeholders
- W.D.Ark.: Parole search waiver moots lack of PC argument
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- NY: Failure to show independent source for officer’s observation of def required reversal
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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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Fourth Amendment cases,
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Congressional Research Service:
--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: Informant hearsay
CA10: Civil remedy for violation of Posse Comitatus Act, not exclusion
The remedy for a violation of the Posse Comitatus Act is civil, not exclusion. United States v. King, 2023 U.S. App. LEXIS 19052 (10th Cir. July 25, 2023) (denying COA). “On the whole, the factors outlined in Chavez provide mixed … Continue reading
KS: Typo in date of GPS warrant was “technical irregularity” that could be overlooked
A typo in the date on a GPS tracking warrant was a technical irregularity that did not substantively prejudice him. State v. Campbell, 2023 Kan. LEXIS 49 (July 14, 2023). The fact defendant’s statement to the police that formed the … Continue reading
M.D.Ala.: CI’s controlled buy doesn’t have to be on video to support PC
There’s no constitutional requirement that the informant’s controlled buy be on video to support probable cause. United States v. Salter, 2023 U.S. Dist. LEXIS 119269 (M.D. Ala. June 7, 2023), adopted, 2023 U.S. Dist. LEXIS 115746 (M.D. Ala. July 6, … Continue reading
E.D.Ark.: Ptf’s Facebook posts shooting guns supported use of flashbang during drug raid
Plaintiff’s Facebook posts of her shooting guns on her property supported the use of flashbang devices when her house was subjected to a drug raid by the SWAT team. Davenport v. City of Little Rock, 2023 U.S. Dist. LEXIS 119102 … Continue reading
E.D.La.: Leaving the wrong SW at the scene of the search is not a ground to suppress
Leaving the wrong search warrant at the scene of the search is not a ground to suppress. United States v. Major, 2023 U.S. Dist. LEXIS 116569 (E.D. La. July 7, 2023). The CI had no track record, but his story … Continue reading
E.D.Mich.: The tip was anonymous, but it was corroborated by investigation
The initial tip about defendant being a drug dealer was anonymous, but officers investigated to corroborate it. “Detectives went to the address associated with the phone number provided by the anonymous source, observed activity which they believed was consistent with … Continue reading
S.D.Ohio: Federal suit to force state court to apply exclusionary rule barred by Younger and Rooker/Feldman
Plaintiff’s suit in federal court to cause state court to apply the exclusionary rule in state court is barred by Younger and Rooker/Feldman. Chappel v. Adams Cnty. Child.’s Servs., 2023 U.S. Dist. LEXIS 112877 (S.D. Ohio May 19, 2023). Defendant’s … Continue reading
TX1: 911 call about a suspected kidnapping led to a stop found valid under Naverette
A 911 call about a suspected kidnapping led to a stop found valid under Naverette. Small v. State, 2023 Tex. App. LEXIS 4610 (Tex. App. – Houston (1st Dist.) June 29, 2023)* (unpublished) “These events establish probable cause, especially when … Continue reading
M.D.Ala.: Failure to back up CI made SW lack PC
Relying on a CI without backing him up failed to show probable cause. “With these guiding principles in mind, the undersigned concludes the search warrant affidavit here did not provide a substantial basis for finding probable cause to believe narcotics … Continue reading
W.D.Tenn.: Officers don’t have to corroborate CIs by doing controlled buys or traffic stops of the target
Law enforcement officers don’t have to corroborate CIs by doing controlled buys or traffic stops of the target. “However, in reviewing a search warrant for probable cause, a court is ‘to look holistically at what the affidavit does show, instead … Continue reading
D.Mont.: § 1983 that Montana SWs can’t be executed on tribal lands barred by Younger
Plaintiff in Lewis & Clark County Jail sues under § 1983 that Montana search warrants can’t be executed on tribal lands. This claim is barred by Younger. Adams v. Baker, 2023 U.S. Dist. LEXIS 107569 (D. Mont. June 21, 2023).* … Continue reading
FL1: If trial court refuses to unseal SW affidavit, in camera review must be sought to preserve issue
Defendant sought unsealing of the search warrant affidavit which the state successfully resisted on the ground of informant privilege in other ongoing investigations. The defense never sought in camera review. Without that, the issue was unpreserved for appellate review. Leverette … Continue reading
CA8: No REP against CI recording you in your own house
There is no reasonable expectation of privacy against video recording by an informant when the informant was invited into the home. United States v. May, 2023 U.S. App. LEXIS 14734 (8th Cir. June 14, 2023). “Upon review, the Court finds … Continue reading
CA8: Citizen informant’s reports of def having gun in a wheelchair were reliable and provided PC
Citizen informants’ reports of defendant having a firearm in his wheelchair justified the stop and search on probable cause and exigency. United States v. Cunningham, 2023 U.S. App. LEXIS 14638 (8th Cir. June 13, 2023).* Defendant had standing in another … Continue reading
MA: Driveway used for parking is not curtilage when car visible to all
Defendant’s vehicle was not parked within the curtilage of his home. The officer’s observations of the vehicle did not constitute a search under the Fourth Amendment or the Mass. Const. Decl. Rights art. 14. Defendant’s house was set back from … Continue reading
CA11: Three CIs with overlapping information corroborated each other
Three informants’ overlapping information corroborated one another such that establishing their veracity was unnecessary. The affidavit in support of the warrant contained enough indicia of probable cause that an officer’s reliance was not unreasonable as it sufficiently linked the residence … Continue reading
CA6: Younger requires the federal case over an arrest or search be stayed, not dismissed
The district court improperly dismissed plaintiff’s case under Younger because of ongoing state proceedings it implicated. It should have stayed it instead. Neal El v. Showman, 2023 U.S. App. LEXIS 12604 (6th Cir. May 22, 2023). The Fourth Amendment does … Continue reading
CA7: Home confinement sentence included a valid search waiver
Defendant was serving a home confinement sentence that included a search waiver. Officers developed reasonable suspicion of another crime and a violation of living conditions. The search was reasonable. United States v. Beechler, 2023 U.S. App. LEXIS 12312 (7th Cir. … Continue reading
W.D.Tex.: State SW doesn’t deprive federal court of jurisdiction
Federal courts had jurisdiction over defendant’s criminal case despite his initial arrest after execution of a state search warrant. Calzada v. United States, 2023 U.S. Dist. LEXIS 86622 (W.D. Tex. Apr. 13, 2023). Disclosure of the CI who provided information … Continue reading