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- Topeka Capital-Journal: Kansas sets higher bar for police seizure after accusations of for-profit policing
- E.D.Wis.: SW for cell phones allowed seizure of others found on premises
- CA6: No QI for shooting a man obviously surrendering
- DE: Officers approaching men on a stoop at night with a police dog saying “nobody move” was a seizure
- E.D.N.Y.: To get CSLI, there must be some showing the phone was involved in the crime
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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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Fourth Amendment cases,
citations, and links -
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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)
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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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Category Archives: Uncategorized
D.Mont.: “‘Humpty Dumpty’ rule of meaning” of exigency?
Police entry for a drug overdose is an exigency. United States v. Van Pelt, 2021 U.S. Dist. LEXIS 211734 (D.Mont. Nov. 2, 2021). And there’s this:
ABAJ: Chemerinsky: SCOTUS continues to hold the line on qualified immunity
ABAJ: Chemerinsky: SCOTUS continues to hold the line on qualified immunity (“Two unanimous U.S. Supreme Court decisions on Oct. 18 show the justices are continuing to broadly interpret qualified immunity to limit suits against government officials, especially police officers. Perhaps … Continue reading
Law.com: Analysis: Recent Woes for Prosecutors in Cellphone Searches
Law.com: Analysis: Recent Woes for Prosecutors in Cellphone Searches (“Three recent district court decisions exemplify how courts have struggled with the Fourth Amendment questions raised by the intrusive nature of cellphone searches.”)
W.D.N.Y.: Ongoing murder investigation with other SWs executed did not make this SW stale
Three weeks passed in a murder investigation between officers thinking they might have to search and getting the search warrant. Other search warrants were obtained in the interim, and the investigation was ongoing. The delay was reasonable. United States v. … Continue reading
VT: Pseudo welfare check cannot be a ruse for a plain view under Jardines under state constitution
A pseudo welfare check cannot be a ruse for a plain view under Jardines. Police officers entering defendant’s girlfriend’s yard under the guise of a welfare check over the normal access route were looking for and discovered a 9 mm … Continue reading
CA6: Arrest was reasonable based on reasonable mistake of law or fact
The officers here had a reasonable basis for arresting plaintiff for obstruction of an officer, whether it was based on a reasonable mistake of fact or of law. And that plays into qualified immunity. Barrera v. City of Mount Pleasant, … Continue reading
CA8: Removal of children from home on exigency, if a 4A claim, can be based on RS
Removal of children from the home on reasonable suspicion of exposure to toxic fumes, even if governed by the Fourth Amendment, was based on reasonable suspicion and was subject to qualified immunity. Stanley v. Hutchinson, 20-1822 (8th Cir. Sept. 8, … Continue reading
NY Times: How the N.Y.P.D. Is Using Post-9/11 Tools on Everyday New Yorkers
NYTimes: How the N.Y.P.D. Is Using Post-9/11 Tools on Everyday New Yorkers (“Two decades after the attack on New York City, the Police Department is using counterterrorism tools and tactics to combat routine street crime.”)
The Economist: A 38-year-old charity will be integrated into Apple’s newest operating system
The Economist: A 38-year-old charity will be integrated into Apple’s newest operating system (“The peculiar status of NCMEC, funded by the Justice department but independent of it, allows what might otherwise be an unlawful search”)
He predicted today’s lack of digital privacy in 1994
WaPo: Surveillance and Capture: Two Models of Privacy by Reed Albergotti (“He predicted the dark side of the Internet 30 years ago. Why did no one listen? Philip Agre, a computer scientist turned humanities professor, was prescient about many of … Continue reading
Three week trial starting 8/23
So postings will occur on the weekends.
CNN: Florida judge orders destruction of suppressed video evidence in Robert Kraft case
CNN: Florida judge orders destruction of suppressed video evidence in Robert Kraft case by Rebekah Riess, Gregory Lemos & Amir Vera (“A Palm Beach County, Florida, judge ordered the destruction of video evidence previously suppressed in the case against New … Continue reading
N.D.Ohio: Officer reasonably believed a traffic violation occurred, whether or not it did
The question is not whether defendant actually made a left turn traffic violation; it’s whether the officer reasonably believed he did. Even the Ohio courts aren’t sure, and that makes the officer’s belief reasonable. United States v. Pacelli, 2021 U.S. … Continue reading
Jury trials all next week
First for me since March 2020. Postings will be hit or miss. Mostly miss. I will catch up. Update: We won the Silver Medal.
D.D.C.: When cell phone is part of crime, a broader SW is permitted
The warrant for defendant’s cell phone showed plenty of probable cause. Because the probable cause was based on use of the phone as an instrumentality of the offense of attempted child exploitation and possession of child pornography, a broader warrant … Continue reading
S.D.Ind.: Officer’s testimony he could smell about 3 oz of packaged MJ from a moving car is incredible
Officer’s testimony a small quantity of marijuana in two sandwich bags could be smelled as a car drove by is found incredible and contrary to common sense. United States v. Gray, 2021 U.S. Dist. LEXIS 128199 (S.D. Ind. July 9, … Continue reading
The Bitcoin IRS data appeal in CA1
Bitcoin.com: NCLA Files Appeal Against the IRS — Law Firm Claims Tax Agency Unlawfully Seizes Crypto Data of Thousands by Jamie Redman (“On Friday, the public interest law firm New Civil Liberties Alliance (NCLA) filed an opening brief in the … Continue reading
WaPo: Federal agencies need stricter limits on facial recognition to protect privacy, says government watchdog
WaPo: Federal agencies need stricter limits on facial recognition to protect privacy, says government watchdog by Gerrit De Vynck (“Black Lives Matter protesters, Jan. 6 rioters and regular travelers are among those targeted by agencies using the tech, including the … Continue reading
CO: Impeachment exception to exclusionary rule permits defendant to testify truthfully without opening door to suppressed evidence
The impeachment exception to the exclusionary rule does not bar truthful testimony under the right to present a defense. The trial court has to tailor working around suppressed evidence to enable the defendant to testify truthfully, albeit incompletely because of … Continue reading
OPB: Police in Oregon are searching cellphones daily and straining civil rights
Oregon Public Broadcasting: Police in Oregon are searching cellphones daily and straining civil rights by Jonathan Levinson (“‘The police showed up with search warrants and the magistrate looked at it and said, ‘No, this is not tailored enough. Think about … Continue reading