Archives
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Recent Posts
- W.D.N.C.: No REP in a police interview room
- TX2: No SW needed to get IMEI number of an abandoned cell phone to trace the owner
- W.D.Pa.: Affidavit for SW doesn’t have to say CI was reliable when the facts and circumstances alleged showed it
- S.D.N.Y.: GJ subpoena for cell phone passcode quashed.
- S.D.N.Y.: There’s a privacy interest in a cell phone passcode, but its disclosure here under a ruse does not lead to suppression
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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)
--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)
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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: Plain view, feel, smell
NC: Lack of findings for denial of motion to suppress precludes review; remanded
After a suppression hearing, the trial court orally denied the motion to suppress after hearing conflicting evidence. The state was to prepare findings and didn’t. After defendant was convicted on that evidence, there was nothing for the appeal. Remanded for … Continue reading
S.D.Fla.: Emergency motion to quash SW denied; def can still file a motion to suppress
The target of a search filed an emergency motion to quash a search warrant for DNA to compare it to a firearm but without a showing there was DNA on the gun. The motion is denied, but the target can … Continue reading
GA: SW for marijuana supported plain view seizure of firearms, ammunition, and body armor
Police had a search warrant for marijuana. “[E]ven if the seizure of the firearms, ammunition, and body armor is not within the scope of the warrant, we agree with the State that law enforcement was authorized to seize these items … Continue reading
GA: SW for blood draw specifically didn’t mention testing
Where the search warrant for defendant’s blood only permitted drawing the blood and not testing it, testing it required another warrant. State v. De La Paz, 2024 Ga. App. LEXIS 98 (Mar. 8, 2024). Defendant’s conviction was based in part … Continue reading
AK: Police aerial flyover with telephoto lens of rural property violates state right of privacy
Under the Alaska Constitution, an aerial flyover with a telephoto lens of rural property in a “sparsely populated area” in the woods north of Fairbanks produced evidence of a grow operation. In a long (and sensitive opinion), the Alaska Supreme … Continue reading
OH5: Officer’s writing wrong statute number on ticket was a reasonable mistake of law
Defendant’s stop for a loud muffler was reasonable. His claim that it wasn’t loud on the bodycam is rejected. Another alleged offense cited the wrong statute. That’s a reasonable mistake of law. State v. Braucher, 2024-Ohio-811, 2024 Ohio App. LEXIS … Continue reading
D.Minn.: Cell phone that govt can’t open not in its possession for discovery purposes
Defendant’s cell phone is in the possession of the government but it can’t search it because they don’t have the pass code. Defendant’s request for discovery of the phone under Rule 16 is denied because the contents of the phone … Continue reading
GA: Officer didn’t have to distinguish between smell of MJ, hemp, and CBD to have PC to search car
Under existing precedent, the smell of suspected marijuana couldn’t be distinguished between hemp and CBD, and that was still probable cause for search of the car. Coverstone v. State, 2024 Ga. App. LEXIS 90 (Mar. 4, 2024). “First, Officer Murphy … Continue reading
CA5: Burden on def to show smell of MJ in car was from lawful use
If one is claiming that prior use of marijuana in the car is lawful, thus defeating probable cause, the burden is on him or her. United States v. Goldsmith, 2024 U.S. App. LEXIS 4405 (5th Cir. Feb. 26, 2024).* [Except … Continue reading
E.D.Ky.: Motion for new trial here not ground for illegal search claim
This motion for new trial is not for defendant’s claim that officers hacked his computer to illegally search it. It’s not newly discovered. Moreover, there were questions of the FBI computer analyst about whether the computer had been hacked. United … Continue reading
OH1: Trial court erred in not suppressing when officer couldn’t remember the basis of stop
Defendant satisfied his burden of pleading by stating the stop was without justification. At the hearing on the motion to suppress this OVI case, the officer couldn’t remember why defendant was stopped. The trial court erred in not suppressing. State … Continue reading
D.Minn.: Neither PC nor RS required to look into a stopped vehicle’s windows
Neither probable cause nor reasonable suspicion required to look into a stopped vehicle’s windows. United States v. Walker, 2024 U.S. Dist. LEXIS 22075 (D. Minn. Feb. 8, 2024). Defendant’s social media account with pictures of him holding guns and recorded … Continue reading
S.D.Ill.: Odor of marijuana coming from a car is PC in this federal circuit even if it’s maybe not in state court anymore because of recreational use
The odor of marijuana coming from a car is probable cause in this circuit even if it’s maybe not be in state court anymore. United States v. Toney, 2024 U.S. Dist. LEXIS 20838 (S.D. Ill. Feb. 6, 2024). Qualified immunity … Continue reading
W.D.Ark.: Manhandling a diabetic who passed out while driving gets no QI; law well established
Plaintiff, a diabetic, had a car wreck while in a low blood sugar episode. From the court’s opinion, it’s clear the officers had no idea what they were doing when they handcuffed and Tased her for no apparent reason, then … Continue reading
N.D.Tex.: Suppression in forfeiture is Supp.Rule G(8)(a) not Rule 41
The government sought forfeiture of the owner’s cash after it was seized at DFW after a dog sniff on his bag. The owner responded with a motion to suppress under Rule 41, but that doesn’t apply in forfeiture cases. Supplemental … Continue reading
W.D.Pa.: Affidavit for SW failed to show PC, but it wasn’t completely bare bones, so GFE applies
The affidavit averred that defendant came from his house and got in his car manifesting characteristics of somebody who was probably armed, although the officers could see no gun. This is all inference, which isn’t precluded. The affidavit is not … Continue reading
D.D.C.: Merely touching a car trying to see inside it with a flashlight wasn’t a trespass
Police touching defendant’s car when the police looked in it and saw a gun wasn’t a trespass under Jones, and then they forced their way in. Jones involved installing a tracking device on the car. This is not a “ringing … Continue reading
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