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Recent Posts
- OH5: Cell phone SW was not particular, GFE doesn’t apply, but harmless after all
- CA5: CBP dog sniffing for people was PC even if it couldn’t differentiate between the driver and alleged hidden passengers
- D.D.C.: Here, RS was thin, and frisking under jacket was unreasonable
- NE: LEO’s statutory jurisdictional authority is not an unreasonable search and seizure question
- MA: Cell phone call logs don’t require a search warrant
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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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--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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Category Archives: Uncategorized
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
Motherboard: Crime App Citizen is Driving a Security Car Around L.A. and Won’t Say Why
Motherboard: Crime App Citizen is Driving a Security Car Around L.A. and Won’t Say Why by Joseph Cox (“The vehicle is linked to a private security company which describes itself as a ‘subscription law enforcement service.’”)
WaPo: Police told a man a container in his car tested positive for drugs. It was his daughter’s ashes.
WaPo: Police told a man a container in his car tested positive for drugs. It was his daughter’s ashes. By Andrea Salcedo (“Dartavius Barnes sat handcuffed inside a squad car in Springfield, Ill., looking confused as police told him they’d … Continue reading
Reason: A Supreme Court Decision That Did Lasting Damage to the 4th Amendment
Reason: A Supreme Court Decision That Did Lasting Damage to the 4th Amendment by Damon Root (“How pretextual traffic stops got the judicial stamp of approval.”)
ABA, CJS: The Myth of Objectivity in Fourth Amendment Jurisprudence
Juval O. Scott, The Myth of Objectivity in Fourth Amendment Jurisprudence, 36 Criminal Justice 13 (No. 1 Spring 2021):
CA8: Def’s contradicting suppression hearing testimony at trial opened him to cross-examination on it
Where defendant’s testimony of his connection to the car materially changed between the suppression hearing and trial, the government could cross examine him on the contradictions under Simmons. United States v. Navarette, 2021 U.S. App. LEXIS 13458 (8th Cir. May … Continue reading
LATimes: The FBI raided her home to find Nancy Pelosi’s laptop. But was she the wrong woman?
LATimes: The FBI raided her home to find Nancy Pelosi’s laptop. But was she the wrong woman? (Homer, AK, because she looked like the alleged thief)
OR: RS as to the car extends to passengers otherwise doing nothing
Reasonable suspicion as to the car can extend to a passenger doing nothing. This is akin to a protective sweep of a house to protect against unknown dangers. State v. Payne, 310 Ore. App. 672, 2021 Ore. App. LEXIS 500 … Continue reading
NYT: Why Police Can Stop Motorists With Air Fresheners Hanging in Their Cars
NYT: Why Police Can Stop Motorists With Air Fresheners Hanging in Their Cars by Mike Baker and Nicholas Bogel-Burroughs (“In a majority of states it is illegal to hang anything from a rearview mirror that obscures a driver’s view. Critics … Continue reading
18 years old today
(The blog is old enough to vote.)
NY (Bronx): No “clear indication” shown to connect defs to gun in trunk to compel DNA test
The state doesn’t show a “clear indication” to take DNA samples from three defendants to attempt to connect them to a gun found in the trunk of one defendant’s car that he owned up to. A motion to suppress the … Continue reading
VICE: How New York Quietly Ended Its Street Drug War
VICE: How New York Quietly Ended Its Street Drug War by Max Daly (“New data analyzed by VICE News reveals a monumental drop in arrests and convictions for low level drug crime in NYC, as the city finally tries to … Continue reading
NBC: Swiping alt-right: How catfishing for democracy helped users flag Capitol rioters to FBI
NBC News: Swiping alt-right: How catfishing for democracy helped users flag Capitol rioters to FBI with Ali Vitali
IA: Trash container in the grass on the alley within easy reach was searchable
In a trash search case, the trash cans faced an alley but were on defendant’s grass. The officers could open the trash cans without stepping on the property. This was a valid trash search, and, having credited the officers’ testimony, … Continue reading
D.Me.: No PC shown for SW in 33 year old rape and murder case, but GFE still applies (because two judges approved of it)
Defendant was the target of a 2019 search warrant for trophies (jewelry and clothing) from and ligatures used in sexual assaults and murders committed in 1986-88. Defendant did four stints in prison in between. A search warrant was issued for … Continue reading
OH5: “Request” to “come here” was not a seizure
Based on prior cases, the court finds this encounter was a consensual encounter. “We find that the Trooper’s request that appellant ‘come here’ did not turn the encounter into a seizure.” State v. Nichols, 2020-Ohio-6960, 2020 Ohio App. LEXIS 4782 … Continue reading
NYTimes: Another Arrest, and Jail Time, Due to a Bad Facial Recognition Match
NYTimes: Another Arrest, and Jail Time, Due to a Bad Facial Recognition Match by Kashmir Hill (“Nijeer Parks is the third person known to be arrested for a crime he did not commit based on a bad face recognition match.”)
OH3: When state appeals dismissal for pretrial delay, def can’t appeal denial of suppression motion
Denial of a motion to suppress is not immediately appealable in Ohio. Here, there was an appealable pretrial issue of a grant of dismissal for pretrial delay, and the court finds the suppression issue was still viable and could be … Continue reading