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Recent Posts
- Bloomberg Law: Texas’ 100-Plus Year Investigatory Tool Ruled Unconstitutional
- D.Minn.: State law permits POs to conduct “unannounced visits” and that includes unannounced warrantless searches
- E.D.Va.: Three images from ALPR in 30 days wasn’t enough for a Carpenter violation
- CA5: The 4A doesn’t limit the number of officers that show up for an administrative search
- D.Idaho: The exclusionary rule does not apply in pretrial release revocations
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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 (27,400+ on WordPress as of 7/23/24) -
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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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"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: Independent source
D.Minn.: Even if stop was without RS, eluding police gave it
Even if there was no reasonable suspicion for defendant’s stop, his new offense of eluding the police justified it. United States v. Denton, 2024 U.S. Dist. LEXIS 170669 (D. Minn. Sep. 23, 2024).* The affidavit for this warrant shows probable … Continue reading
CA9: Boat moored near an open waterway is a “vehicle” not subject to the knock-and-announce
A boat moored near an open waterway is a “vehicle” not subject to the knock-and-announce rule. United States v. Jones, 2024 U.S. App. LEXIS 14481 (9th Cir. June 12, 2024). The government satisfied the independent source doctrine showing that it … Continue reading
OH10: Alleged violation of prosecutor’s subpoena power not subject to exclusionary rule; also, subject matter was third party record
A violation of the state prosecuting attorney’s subpoena power in felony cases was not subject to the exclusionary rule. In addition, obtaining third party information from an IP address is not a search. State v. Diaw, 2024-Ohio-2237, 2024 Ohio App. … Continue reading
NY: Failure to show independent source for officer’s observation of def required reversal
“[H]ere, the People presented practically no testimony regarding the undercover officer’s observations of the seller’s appearance to support a determination that he had a sufficient independent basis to identify defendant in court. This error requires reversal. Because the record of … Continue reading
VA: Outline of a gun in def’s pocket was RS
The outline of a gun in defendant’s pocket was reasonable suspicion. Alvin v. Commonwealth, 2024 Va. App. LEXIS 230 (Apr. 23, 2024). Even if a prior search was unreasonable, there was an independent source for the warranted search of defendant’s … Continue reading
OH5: A replevin action can’t be used to suppress evidence seized by SW
A replevin action can’t be used to suppress evidence seized by search warrant. Glass v. Del. Cty. Sheriff’s Office, 2024-Ohio-1301, 2024 Ohio App. LEXIS 1235 (5th Dist. Apr. 4, 2024). Defendant fails his Franks burden, and the warrant wasn’t stale. … Continue reading
TN: Even if search occurred before SW issued, affidavit mentions nothing of it; thus independent source
Defendant claimed that his place was warrantlessly searched before the search warrant for it was issued. Doesn’t matter: The affidavit for the warrant shows probable cause and never mentions a prior search. State v. Quinn, 2024 Tenn. Crim. App. LEXIS … Continue reading
CA6: No REP in “Walmart pay app” purchases; it’s a third-party record
Defendant had no reasonable expectation of privacy in his “Walmart pay app” purchases from a third party subpoena of things he used in a bank robbery shortly thereafter. “Therefore, the third-party doctrine still applies to business records that might reveal … Continue reading
NY4: No standing in search of a common basement storage area “not associated with his apartment”
Defendant showed no standing to contest a search of a common basement storage area, “not associated with his apartment.” People v. Ocasio, 2023 NY Slip Op 06623, 2023 N.Y. App. Div. LEXIS 6727 (4th Dept. Dec. 22, 2023). Even if … Continue reading
D.Haw.: State officers allegedly violating state law in warrant process or execution irrelevant under 4A
The fact state officers might have violated state law in executing the warrant wasn’t material to the Fourth Amendment reasonableness requirement. United States v. Miske, 2023 U.S. Dist. LEXIS 203981 (D. Haw. Nov. 14, 2023).* There was reasonable suspicion or … Continue reading
E.D.N.C.: Even if search preceded arrival of SW, independent source applied
Even if the search preceded the warrant being issued, the decision was already made and the independent source doctrine validates the search. United States v. Ellis, 2023 U.S. Dist. LEXIS 202209 (E.D.N.C. Oct. 20, 2023), adopted, 2023 U.S. Dist. LEXIS … Continue reading
E.D.Wis: Faced with motion to suppress DNA evidence, govt can seek it again
The government obtained DNA and defendant moved to suppress. Then the government sought DNA by warrant again with a new warrant. It is permitted to do so. United States v. Watson, 2023 U.S. Dist. LEXIS 185148 (E.D. Wis. Oct. 16, … Continue reading
GA: 2022 SW for cell phone illegally searched in 2020 had no independent basis; no GFE
The trial court did not err by granting the motion to suppress evidence seized as a result of the search of his cell phone because the State’s original warrantless search in 2020 was improper and the State did not remedy … Continue reading
CA4: Def gets remand of unexplained warrantless search condition on supervised release
The condition of supervised release that defendant submit to warrantless searches wasn’t explained to him or justified. Remanded. United States v. Davila, 2023 U.S. App. LEXIS 12714 (4th Cir. May 23, 2023). Plaintiff’s driving, observed by an officer and caught … Continue reading
CA2: Protective sweep while SW being obtained saved by independent source doctrine
Officers conducted a protective sweep while a search warrant was in the process of being obtained, so the independent source rule applies. United States v. Schleede, 2023 U.S. App. LEXIS 11803 (2d Cir. May 15, 2023). Plaintiff didn’t state a … Continue reading
CA4: CI’s 911 call showing stress of a startling event was reliable
A CI’s 911 call “‘under the stress of excitement caused by a startling event’ (making the call less likely to be preplanned),” was reliable enough for reasonable suspicion. Torres v. Ball, 2023 U.S. App. LEXIS 9076 (4th Cir. Apr. 17, … Continue reading
CA10: Overlong stop didn’t cause independent search incident
Defendant was subjected to a search incident for false identification. His overlong stop otherwise didn’t cause that. United States v. Anderson, 2023 U.S. App. LEXIS 5997 (10th Cir. Mar. 14, 2023).* “Teixeira struggles to throw shade on the reliability of … Continue reading
CA3: Delaware “hit and hold” practice for entries not decided because of consent
The court declines to decide the officers’ “hit and hold” entries where they entered without a warrant but under alleged exigency, secured the premises, and then sought a search warrant. Because there was independent justification for the warrantless search after … Continue reading