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Recent Posts
- CA7: Jail officials holding plaintiff under a valid court order aren’t liable for not releasing him sooner after a sentencing error
- Volokh: Do Fourth Amendment Protections Change When Property Is Moved?
- M.D.Pa.: Def was neither shipper nor recipient of USPS parcel, so he had no standing in it
- WI: Obtaining def’s DNA by ruse wasn’t an illegal search
- WaPo: Apple, Google and Venmo fight new U.S. plan to monitor payment apps
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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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--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 -
"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: February 2023
CA6: SW for home DVR failed to allege criminal evidence would be found and violates 4A
There was a fire in a shed that was likely caught by defendant’s home surveillance camera. He declined to turn it over to investigators investigating the cause of the fire. They don’t even know that the fire was arson. The … Continue reading
D.Colo.: Date range isn’t always required by 4A for particularity of cell phone SW
In a cell phone search warrant, “Although Trujillo argues that the date range from May 16, 2022, to present lacked ‘legal justification,’ Trujillo provides no explanation or authority as to how this date range rendered the warrant unconstitutionally general. There … Continue reading
D.Ariz.: Holding on to DL too long during traffic stop required RS
The traffic stop was justified, as was running the DL. However, the officer held on to the license too long and extended the stop without ending it. The continuation of the stop lacked reasonable suspicion. United States v. Serna, 2023 … Continue reading
AL: Effective assistance of counsel doesn’t require defense counsel to forecast changes in 4A law
Defense counsel moved to suppress BAC results, but not on Fourth Amendment grounds. The motion was heard and denied. Now defendant claims ineffective assistance for failing to make a Fourth Amendment claim, too. The court finds that the motion was … Continue reading
N.D.Miss.: Geofence warrant approved in 2018 USPS truck robbery
A geofence warrant is sustained on probable cause and particularity in a post office truck robbery where the driver was beaten in United States v. Smith, 2023 U.S. Dist. LEXIS 22944 (N.D. Miss. Feb. 10, 2023). While some later steps … Continue reading
E.D.Va.: No 4A right to notice before a search occurs; state search law inapplicable in federal court
Defendant’s Fourth Amendment claim is that he was given no notice that his phones had been searched, citing Virginia law, which is irrelevant in a federal prosecution, even though state officials did all the searching. There’s no constitutional right to … Continue reading
D.N.M.: A lesson in proving nexus for a SW for a house for evidence of a shooting incident happening elsewhere
A lesson in proving nexus for a search warrant for a house in a shooting incident elsewhere. United States v. Coriz, 2023 U.S. Dist. LEXIS 22857 (D.N.M. Feb. 10, 2023).* All warrant affidavits should be this good, and you can’t … Continue reading
S.D.Ill.: Running away from a stopped car saying it’s not yours is abandonment
Defendant was stopped for overtinted windows and speeding. He got out and refused to get back in. Finally, he ran away saying the car was not his. That’s abandonment. United States v. Wiley, 2023 U.S. Dist. LEXIS 22439 (S.D. Ill. … Continue reading
D.Md.: Being handcuffed means one could believe he or she is not free to leave
Handcuffing a person is a sure sign they are not free to leave. Here, however, it was justified by defendant’s own actions. United States v. Johnson, 2023 U.S. Dist. LEXIS 22159 (D. Md. Feb. 8, 2023).* A successor habeas doesn’t … Continue reading
D.Alaska: Def’s Franks motion is granted; PC lacking without false statements
The motion to suppress for a Franks violation is granted. The officer made several material recklessly false statements in support of the probable cause. United States v. Wallace, 2023 U.S. Dist. LEXIS 21659 (D. Alaska Feb. 8, 2023).* There was … Continue reading
CA6: Allegedly misrepresenting purpose of entry here had no bearing on use of deadly force once inside
Whether the officer lawfully entered the house by misrepresenting his purpose has nothing to do with the objectively justifiable use of deadly force inside. Sawyer v. City of Soddy Daisy, 2023 U.S. App. LEXIS 3108 (6th Cir. Feb. 7, 2023). … Continue reading
CA6: Being a drug dealer is not per se nexus to one’s home; more required
Defendant was a drug dealer, but the affidavit for warrant did nothing to show a reason to believe (nexus) that drugs would be found at his house. No case in this circuit supports nexus on these facts. Moreover, the information … Continue reading
M.D.Ala.: A Franks challenge that appears only to be an attempt to examine the CI fails
Defendant’s Franks challenge fails on recklessness. Moreover, it really is just a desire to cross-examine the CI. “Neal’s request for a Franks hearing also falls short for a separate, independent reason: contrary to the requirements of Franks, Neal’s application for … Continue reading
WaPo: We asked: What happens if TSA finds weed in my bag?
WaPo: We asked: What happens if TSA finds weed in my bag? by Natalie B. Compton (“By The Way Concierge tackles flying with marijuana as it becomes legal in more states”)
CA4: A civilian livestreaming police interaction is protected by 1A, but officer here gets QI
The First Amendment protects livestreaming interactions with police. But qualified immunity denies plaintiff’s claim. Sharpe v. Winterville Police Department, 2023 U.S. App. LEXIX 2959 (4th Cir. Feb. 7, 2023):
NYLJ: Major Reform in Street Encounters Enacted by Police Department
NYLJ: Major Reform in Street Encounters Enacted by Police Department (“As a result of a class action lawsuit brought by the Legal Aid Society, the New York City Police Department has agreed to a major reform of its street encounter … Continue reading
Reason: WV Family Court Judge with History of Arranging Warrantless Searches Resigns
Reason: West Virginia Family Court Judge with History of Arranging Warrantless Searches Resigns by J.D. Tuccille (“We may have finally discovered a limit to judicial immunity.”)
D.Conn.: Govt’s mere allegation def has possessory interest in package doesn’t give him standing; he still has to show it
Defendant can’t rely on the government’s representation they believe he has a possessory interest in a parcel. He has to show it, and here he did not. United States v. Franco, 2023 U.S. Dist. LEXIS 18256 (D. Conn. Feb. 3, … Continue reading
W.D.Okla.: MJ user not barred from handgun possession under § 922(g)(3)
A marijuana user is not barred from possessing a handgun under Heller and Bruen under § 922(g)(3). The case makes passing reference to the Fourth and Second Amendments reflecting current rights in 1789. (It’s only here because it’s really interesting.) … Continue reading