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- S.D.N.Y.: 15 months not too long to make cell phone search and review unreasonable
- W.D.Pa.: Def doesn’t overcome common law presumption SW records are public records
- S.D.N.Y.: SW affidavit differs from crime in indictment such that court grants Franks hearing
- MO: Administrative subpoena to Planned Parenthood was not unreasonable
- CA11: Good Samaritan with a gun near a shooting was not unconstitutionally shot by police
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ABA Journal Web 100, Best Law Blogs (2015-17) (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 -
© 2003-25,
online since Feb. 24, 2003 Approx. 500,000 visits (non-robot) since 2012 Approx. 47,000 posts since 2003 (30,000+ on WordPress as of 12/31/24) -
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--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, Let it Bleed (album, 1969) -
"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: Particularity
S.D.Ill.: Mistake in SW address didn’t mislead police; no IAC for not raising it
Mistakes in search warrant papers happen, and they don’t suppress the search unless they are meaningful and prejudicial to the process. Here, it was a wrong address cured by other things that sent the police to the right place. McBride … Continue reading
CA9: “[E]vidence of dominion and control provision” sought in this CP SW made it overbroad
The “evidence of dominion and control provision” sought in this child pornography search warrant made it overbroad. United States v. Holcomb, 2025 U.S. App. LEXIS 7135 (9th Cir. Mar. 27, 2025). The first paragraph: This case raises a variation of … Continue reading
M.D.Ga.: Cell phone in car of drug dealer was seizable and searched with particular SW
Cell phone found in the car of one reasonably believed to be a drug dealer was searched by a warrant that was particular and with probable cause. United States v. Chambers, 2025 U.S. Dist. LEXIS 53490 (M.D. Ga. Mar. 24, … Continue reading
D.Minn.: SW’s failure to include motel name, address, and room number failed particularity
The search warrant was ostensibly for a particular Motel 6 and room number, but the warrant completely omitted reference to the place to be searched. United States v. Brown, 2025 U.S. Dist. LEXIS 47675 (D. Minn. Mar. 13, 2025). When … Continue reading
NY1: SW misdescription of place to be searched not adequately resolved below; remanded
Defendant’s motion to suppress based on an apparent misdescription of the place to be searched wasn’t resolved below, so the case is remanded for further development. People v. Trulove, 2025 NY Slip Op 01178, 2025 N.Y. App. Div. LEXIS 1170 … Continue reading
OR: Cell phone warrant was sufficiently particular to prevent a general rummaging
For this cell phone search, “As explained above, however, the first and fourth search categories are sufficiently specific, and defendant conceded below that the third category is sufficiently specific. Further, the sixth category’s command to search for location information—as circumscribed … Continue reading
CA9: Use of Taser in dart-mode wasn’t excessive force because it was justified
“An officer’s use of a Taser in dart-mode ‘constitute[s] an intermediate, significant level of force.’ … But under the Graham factors, Officer Swindling’s brief Taser use was justified under the circumstances. First, Sharif had assaulted his daughter’s mother; stolen a … Continue reading
CA6: Impeaching def’s trial testimony about the search of his property using his proffer agreement was prejudicial, but harmless
Impeaching defendant’s trial testimony about the search of his property using his proffer agreement was prejudicial, but it was harmless on this record. They could have cross-examined without it. United States v. Grogan, 2025 U.S. App. LEXIS 2354 (6th Cir. … Continue reading
GA: SW for blood BAC doesn’t also allow search for drugs
A search warrant for blood BAC doesn’t also allow search for drugs. State v. Johnson, 2025 Ga. App. LEXIS 18 (Jan. 28, 2025). Defendant was on supervised release and the search of his cell phone producing child pornography was reasonable. … Continue reading
E.D.Mich.: Civil Franks violation was “well established” and QI denied
Plaintiff was arrested for child sexual abuse. The child recanted, and the prosecutor involved was disbarred for misconduct in this case. Plaintiff’s claim for a Franks violation was well established by 1978, and qualified immunity denied. MacMaster v. Busacca, 2025 … Continue reading
CA3: Conviction for threats by internet justified supervised release condition of computer monitoring
Where defendant was convicted of making threats over the internet to a Congressman, a two year computer monitoring condition was reasonable and did not violate the First and Fourth Amendment. United States v. Hall, 2025 U.S. App. LEXIS 1109 (3d … Continue reading
CA5: Where place to be searched appeared to be one residence, not two, SW valid
The search warrant was for 8977 Deer Trail Run, but it turned out to be two properties. “From all outward appearances there was only one property, not two. The officers acted in objectively reasonable good faith in relying on the … Continue reading
MA: SW for “controlled substances” without specifying anything in particular was overbroad
Search warrant for “controlled substances” without specifying anything in particular, including what the controlled buy allegedly was, was overbroad. In addition, the warrant wasn’t present at the search, so it can’t help limit the search [which seems kind of a … Continue reading
CA11: Body slam of slighter built resisting arrestee was reasonable force
The officer’s body slam of a resisting minor suspect about half his weight was entitled to qualified immunity. “But even if the facts of our case did fit Richmond, the statement that ‘less force is appropriate’ would not put every … Continue reading
D.S.D.: SW for 11 years of iCloud lacked all particularity and GFE didn’t save it
The warrant here authorized search of defendant’s iCloud account for 11 years worth of information despite the probable cause being limited to one event in 2022. The warrant was based on a template that authorized search of the entire account, … Continue reading
OR: SW not particular for wholesale digital searches
The electronic search categories any digital storage devices in this search warrant are not particular under the state constitution. Remanded for determination of remedy. State v. Curry, 336 Or. App. 72 (Nov. 6, 2024):
E.D.Pa.: Remedy for illegal search is to move to suppress, not to dismiss the case
A ground to suppress a search belongs in a motion to suppress, not to dismiss the indictment. United States v. Bailey, 2024 U.S. Dist. LEXIS 198707 (E.D. Pa. Oct. 31, 2024). The search warrant didn’t provide the address of the … Continue reading
E.D.N.C.: Search incident of bag of handcuffed suspect surrounded by six officers was unreasonable
Search incident of bag of a handcuffed defendant surrounded by six officers and being attended by paramedics was unreasonable. “The Government argues that Allen could have slipped free of his handcuffs and lunged for the bags, but such gymnastics are … Continue reading
CA2: 4A doesn’t incorporate state procedural rules and statutes
The constitution doesn’t incorporate state criminal procedural rules and statutes, and a violation of them doesn’t make a Fourth Amendment violation. See Virginia v. Moore. McCullough v. Graves, 2024 U.S. App. LEXIS 27503 (2d Cir. Oct. 30, 2024). The address … Continue reading