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Recent Posts
- S.D.W.Va.: Issuance of a criminal citation is not a seizure
- E.D.Mo.: Evidence of the search comes in because it “completes the story”
- E.D.Wis.: Ptf’s claim judge’s signature on SW was forged fails for not even alleging there was a search
- W.D.Mich.: Search and seizure Brady, even if there was one, wouldn’t change the outcome
- W.D.Mich.: State law violation in search irrelevant in federal prosecution
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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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--Electronic Communications Privacy Act (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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Monthly Archives: December 2022
M.D.Fla.: The fact a USMJ issued SW doesn’t preclude that judge from hearing a motion to suppress
The fact a USMJ issued a search warrant doesn’t preclude that judge from hearing a motion to suppress. United States v. Silva, 2022 U.S. Dist. LEXIS 233243 (M.D. Fla. Dec. 29, 2022). State court’s finding of procedural default on Fourth … Continue reading
Cal.: Officer spotlighting a parked car and then approaching isn’t necessarily a seizure
“A sheriff’s deputy patrolling after dark saw three people sitting in a legally parked car in a residential neighborhood, smoking something. He pulled up behind the car, illuminated it with a spotlight, and approached on foot. We granted review to … Continue reading
NYT: Their Flights Canceled, Southwest Travelers Were Threatened With Arrest by
NYT: Their Flights Canceled, Southwest Travelers Were Threatened With Arrest by Michael Levinson (“A police officer at Nashville International Airport told travelers whose Southwest flights had been canceled that they would be arrested for trespassing if they did not leave … Continue reading
WI: REP in Cloud storage of data from warrantless search
A public employee’s Dropbox account was searched without a warrant by seeking to enter by his user name and changing the password. There is a reasonable expectation of privacy in Cloud storage of digital data when one does not share … Continue reading
OR: Computer hard drive with contraband could be destroyed with guilty plea
By defendant’s plea to a sex and child porn offense, the state could destroy the computer hard drives where the contraband was found. The seizure was in 2003, and the trial was 2017. State v. Forker, 323 Or. App. 323 … Continue reading
CA9: 4A requires no less intrusive measures for inventory
The officers impounding defendant’s vehicle weren’t constitutionally required to allow him to contact others to take possession of the vehicle for him. United States v. Anderson, 2022 U.S. App. LEXIS 35865 (9th Cir. Dec. 29, 2022). See Metropolitan News-Enterprise Three … Continue reading
WaPo: Lawsuit alleges D.C. Housing’s cameras could ‘capture intimate details’
[I don’t normally bother to mention lawsuits until resolved, but SCOTUS is considering a pole camera case for conference in the next month or so.] WaPo: Lawsuit alleges D.C. Housing’s cameras could ‘capture intimate details’ by Justin Wm. Moyer:
N.D.Okla.: NCIS SW in Japan as violation of Posse Comitatus Act was waived by guilty plea
Defendant was the subject of an NCIS search warrant while stationed in Japan. That led to his prosecution in the Northern District of Oklahoma. His guilty plea waived his claim the Posse Comitatus Act was somehow violated. United States v. … Continue reading
NY Monroe Co.: Parts of NY red flag law may violate 2A and 4A
Parts of the NY red flag law concern the court. A taking of firearms should be based on a mental health professional’s assessment of danger to protect both Second and Fourth Amendment rights and procedural rights. G.W. v. C.N., 2022 … Continue reading
E.D.N.Y.: “MS-13 paraphernalia, photographs, and/or graffiti” satisfied particularity
In a RICO prosecution of MS-13, the search warrant included “MS-13 paraphernalia, photographs, and/or graffiti” and this satisfied particularity. United States v. Saenz, 2022 U.S. Dist. LEXIS 231895 (E.D.N.Y. Dec. 27, 2022):
TN: SW for cell phone images of drugs supported accidental finding of CP
Officers had a search warrant for defendant’s phone to look for images and messages about drug transactions. That led them to stumble upon child pornography as well. The warrant and search were valid. State v. Greenman, 2022 Tenn. Crim. App. … Continue reading
CA3: SOL for arrest and search under § 1983 runs from then
The SOL begins with plaintiff’s arrest and search, not the prosecution. Here it was time-barred. (Plaintiff also doesn’t establish any grounds for equitable tolling other than the library was inaccessible during Covid, and he did nothing for over two years.) … Continue reading
CA8: “[E]ven if a technical violation of Nebraska law occurred when signing the warrant that is not a basis for suppressing the evidence” under 4A
“[E]ven if a technical violation of Nebraska law occurred when signing the warrant that is not a basis for suppressing the evidence” under the Fourth Amendment. United States v. Becker, 2022 U.S. App. LEXIS 35626 (8th Cir. Dec. 27, 2022). … Continue reading
CA6: Affidavit circumstantially supported nexus
There was nexus to defendant’s home as a base of operations for drug sales based on circumstantial evidence in the affidavit for warrant. United States v. Pointer, 2022 U.S. App. LEXIS 35506 (6th Cir. Dec. 20, 2022).* The search warrant … Continue reading
NY3: On parole out of your county and lying about travels RS for parole search
Defendant was on parole and stopped outside his residence county. That was reasonable suspicion for a parole search. Plus, defendant’s multiple and inconsistent explanations about his travels, which the police officers knew were false, coupled with his parole situation and … Continue reading
PA: Attachment to a warrant can provide particularity
The attachment to a warrant can provide particularity. While one ground to suppress was mostly litigated, it was apparent the other ground wasn’t waived or abandoned. Commonwealth v. Young, 2022 PA Super 220 (Dec. 23, 2022).* “Here, the record demonstrates … Continue reading
OH8: Calling for drug dog after warning ticket issued unreasonably extended stop
“Regardless, Officer Ashenfelter acknowledged that the traffic violation investigation was completed at 11:10. He called for the canine unit at 11:12, and the canine unit arrived at 11:18 a.m. [¶] Thus, the evidence reflects that the officer, after completing his … Continue reading
Lawfare Podcast: Chris Slobogin on Virtual Searches
Lawfare Podcast: Chris Slobogin on Virtual Searches by Jen Patja Howell:
S.D.N.Y.: The SW was as particular as the information officers had would allow
“In this case, by contrast, there is no indication that law enforcement had a wealth of detailed information that was not reflected in the search warrant. The Premises Warrant was not required to provide more details regarding the specific electronic … Continue reading