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ABA Journal Web 100, Best Law Blogs (2017); ABA Journal Blawg 100 (2015-16) (discontinued 2018)
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© 2003-23,
online since Feb. 24, 2003 Approx. 350,000 visits (non-robot) since 2012 Approx. 45,000 posts since 2003 (25,700+ on WordPress as of 12/31/22)~~~~~~~~~~~~~~~~~~~~~~~~~~
Fourth Amendment cases,
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To search Search and Seizure on Lexis.com $Research Links:
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Stringrays (ACLU No. Cal.) (pdf)
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)
ACLU on privacy
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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!”
"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."
---Pepé Le Pew
—Johnson v. United States, 333 U.S. 10, 13-14 (1948)
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Category Archives: Inevitable discovery
W.D.N.C.: Alleged distinction between smell of MJ and hemp not material here
The distinction between the smell of legal hemp and illegal marijuana wasn’t material where the officer testified he smelled marijuana. United States v. Harris, 2023 U.S. Dist. LEXIS 164723 (W.D.N.C. Sep. 14, 2023).* Defendant was speeding. The stop produced a … 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
LA4: State carries burden on inevitable discovery and it failed here
Here there was a warrantless entry into the house for a gun. Defendant was in custody outside. The state had the burden on inevitable discovery and failed. “In the instant case, the state failed to point to any alternative lawful … Continue reading
D.V.I.: Flyover of curtilage from navigable airspace was reasonable
Officers did a flyover of defendant’s home from navigable airspace and saw a marijuana grow. While he had a subjective reasonable expectation of privacy in the curtilage, not from 2000′. United States v. Flavius, 2023 U.S. Dist. LEXIS 92974 (D.V.I. … Continue reading
CA9: Mere typo in SW affidavit doesn’t support Franks challenge
Defendant’s Franks challenge was conclusory and based on mere typographical errors. United States v. Howard, 2023 U.S. App. LEXIS 9069 (9th Cir. Apr. 17, 2023). Habeas petitioner’s admission of procedural default of his Fourth Amendment claim was an admission there … Continue reading
CA10: Five seconds is de minimus under Rodriguez
In a short per curiam, the Tenth Circuit upholds a dog sniff under Rodriguez without explanation. The concurrence, however, tells us that the stop was extended five seconds past the “Rodriguez moment” as still reasonable. United States v. Hayes, 2023 … Continue reading
CA10: Where someone was summoned to take def’s car from scene of stop, inventory of backpack was unreasonable
The search incident of defendant’s backpack was unreasonable. The government relies instead on inevitable discovery that the backpack would have been inventoried. Here, however, a friend of defendant summoned to the scene could have taken the backpack, so the government … Continue reading
E.D.Ky.: Failure to cross-examine at trial on some contradictions from SW affidavit was not IAC
Defendant’s 2255 ineffective assistance of counsel claim in part challenged defense counsel’s failure to cross-examine over contradictions in a search warrant affidavit by the witness. The government doesn’t address this, and assuming it was defective performance, the court finds a … Continue reading
CA10: “perfunctory factual references” with three legal theories not enough to get a suppression hearing
“Rather than outline factual disputes, Windom’s motion to suppress offered three legal arguments—staleness, nexus, and lack of good faith—for why the affidavit was insufficient to support a search warrant. These arguments contained only perfunctory factual references, with none rising to … Continue reading
CA11: Inventory applied even if automobile exception not satisfied
The search of defendant’s car would have happened as a result of an inventory search whether or not the automobile exception applied. Therefore, inevitable discovery was satisfied. United States v. Russell, 2023 U.S. App. LEXIS 3820 (11th Cir. Feb. 17, … Continue reading
E.D.Va.: Search of cell phone at school for explicit photos of 14-year-old reasonable under T.L.O.
A 13-year-old male student was showing explicit pictures of a 14-year-old girl on his phone at school. The search of the phone by school officials was reasonable under T.L.O., and it led him to juvenile court. O.W. v. Sch. Bd. … Continue reading
DC: “Handcuffing is ordinarily improper in a Terry stop absent an objective safety concern.”
“Handcuffing is ordinarily improper in a Terry stop absent an objective safety concern. See United States v. Smith, 373 F. Supp. 3d 223, 241 (D.D.C. 2019); Haynes v. Minnehan, 14 F.4th 830, 835 n.4 (8th Cir. 2021) (‘[A]bsent an objective … Continue reading
Cal.2: MJ smell associated with minors still RS for an offense
Officers ran an LPN and saw that the vehicle had expired tags. Driving next to the car, officers smelled burnt marijuana and knew that the users were minors which is still an offense under California law. That was cause for … Continue reading
OH: Opening car door was to secure uncooperative def, not search; plain view valid
Opening the car door was not for the purpose of searching; it was to secure the uncooperative defendant. During the interaction, evidence in plain view was seen and the officer then could enter the car to secure it. State v. … Continue reading
OR: Holding def’s ID for 30 minutes for no apparent reason was a seizure without RS
Retaining defendant’s ID for 30 minutes before even thinking about questioning his identity was a seizure without reasonable suspicion. State v. Orman, 322 Or. App. 707, 2022 Ore. App. LEXIS 1479 (Nov. 16, 2022). Defendant was not seized when he … Continue reading
NC: Dog sniff of package in mail stream reasonable
A dog sniff of a package in the mail stream is reasonable. There is no reasonable expectation of privacy from a dog sniff there. State v. Teague, 2022-NCCOA-600, 2022 N.C. App. LEXIS 748 (Nov. 1, 2022). Defendants’ motion in limine … Continue reading
CA1: Voluntary act after unreasonable stop made evidence admissible
There was no reasonable suspicion for defendant’s seizure on the totality. But, “Sierra-Ayala’s intervening volitional act, in the absence of exploitative behavior by López-Maysonet, renders the discovery of the drugs sufficiently attenuated so as to dissipate the taint of the … Continue reading
E.D.Ark.: Def’s statements disassociating himself from the premises searched showed no standing
Defendant had some connection to the premises, but his disassociation from the premises when asked about it by the police showed his lack of standing. “To resolve his motion to suppress, however, the Court need not determine whether these possessory … Continue reading
CA8: Shoplifting arrest supported search incident of backpack; inevitable anyway
The search of defendant’s backpack incident to a shoplifting arrest produced a firearm. Even if the search incident wasn’t proper, it was inevitable the backpack would be inventoried at the jail.United States v. Trogdon, 2022 U.S. App. LEXIS 15860 (8th … Continue reading
