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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© 2003-21,
online since Feb. 24, 2003
WebPage Visits: real non-robot hits since 2010; approx. about 35,000 posts since 2003~~~~~~~~~~~~~~~~~~~~~~~~~~
Fourth Amendment cases,
citations, and linksLatest Slip Opinions:
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To search Search and Seizure on Lexis.com $Research Links:
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Federal Law Enforcement Training Center Resources
FBI Domestic Investigations and Operations Guide (2008) (pdf)
DEA Agents Manual (2002) (download)
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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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NACDL’s Domestic Drone Information Center
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Criminal Appeal (post-conviction) (9th Cir.)
Section 1983 Blog"If it was easy, everybody would be doing it. It isn't, and they don't."
—Me“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"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: Border search
Law360: Biden’s Embrace Of Border Tech Raises Privacy Concerns
Law360: Biden’s Embrace Of Border Tech Raises Privacy Concerns by Mike LaSusa
N.D.Ill.: Officer watching video of street radioing officer on the street about seeing a gun was RS
A Chicago PD officer was watching the streets with surveillance cameras, and he observed defendant apparently with a firearm under his shirt. That report to others who conducted the frisk was collective knowledge for a stop [although that phrase isn’t … Continue reading
E.D.N.Y.: Stop in the recheck line at JFK shortly after clearing customs was still within the border search area
Defendant’s stop in the recheck line at JFK shortly after clearing customs was still within the border search area. United States v. Newton, 2021 U.S. Dist. LEXIS 195145 (E.D.N.Y. Oct. 8, 2021). Reversed yet again for lack of proper findings … Continue reading
D.Md.: Exit border search doesn’t require particularized suspicion
The exit border search of defendant’s bags and computers was reasonable in this government fraud investigation. Particularized suspicion wasn’t even required, albeit present. United States v. Nkongho, 2021 U.S. Dist. LEXIS 184402 (D.Md. Sept. 27, 2021). Plaintiff’s stop for allegedly … Continue reading
VT: Roving CBP patrol stop one mile from Canadian border violated state const. even though probably not 4A
A roving border patrol stop a mile from the Canadian border led to state charges against defendant. The court holds the state constitution was violated even if the Fourth Amendment was not, and the evidence should be suppressed. State v. … Continue reading
Stan. L. Rev.: The Chinese Exclusion Cases and Policing in the Fourth Amendment–Free Zone
The Chinese Exclusion Cases and Policing in the Fourth Amendment–Free Zone by Trillium Chang (2021 Student Essay Competition Winner), 73 Stan. L. Rev. (Sept. 2021):
OH1: Years-old information of trafficking with current info of personal use isn’t PC for trafficking
Where the officer’s affidavit consisted only of years-old stale information and present evidence of personal drug use, there was no probable cause to search the defendant’s residence for evidence of drug trafficking, and the trial court erred in applying the … Continue reading
OH2: Specific 4A claim not made to trial court is waived
The specific Fourth Amendment argument made on appeal wasn’t made to the trial court, so it’s waived. On the merits, officers getting defendant in to talk on basis of a ruse didn’t make it an unreasonable seizure. State v. Luther, … Continue reading
TN: Consent in the face of a threat to get a SW is invalid where no PC
Defendant’s consent in the face of the officer’s threat to get a search warrant was involuntary where there was no probable cause for a warrant. State v. Cohen, 2021 Tenn. Crim. App. LEXIS 356 (July 29, 2021). There was reasonable … Continue reading
W.D.Wash.: Test-firing a firearm to help identify it is a reasonable search
“The Court concludes the test-firing of the weapon was a search. It was test-fired for one sole purpose and that was to gain identifying data on the retained shell casing for subsequent submission to a database of shell casings obtained … Continue reading
CA1 upholds border search of electronic devices
Alasaad v. Mayorkas, 2021 U.S. App. LEXIS 3586 (1st Cir. Feb. 9, 2021):
ABAJ: Immigration lawyer sues over seizure of his cellphone at airport
ABAJ: Immigration lawyer sues over seizure of his cellphone at airport by Debra Cassens Weiss (“Texas immigration lawyer Adam A. Malik has sued the U.S. Department of Homeland Security for seizing and retaining his iPhone when he returned to the … Continue reading
D.VI.: CBP questions at border like “Did you pack the bag yourself” not subject to Miranda
Questions at Customs “Is this your bag?”; “Did you pack the bag yourself?”; and “Are you carrying anything for anyone?” are not subject to Miranda. They related to admissibility of the traveler. United States v. Bailey, 2021 U.S. Dist. LEXIS … Continue reading
CNS: Judges Grapple With Phone, Laptop Searches at US Customs
CNS: Judges Grapple With Phone, Laptop Searches at US Customs by Thomas Harrison (“The First Circuit struggled Tuesday with a policy that lets border agents look through the phones or laptops of travelers returning from abroad.”)
CA9: The fact CBP had RS doesn’t mean it’s required for a border dog sniff
“The fact that Customs and Border Patrol (CBP) officers had reasonable suspicion cannot serve to heighten the standard attached to the border search.” The use of a drug dog at the border doesn’t require reasonable suspicion. United States v. Meraz-Campos, … Continue reading
S.D.Fla.: Helping Canada comply with a US MLAT request doesn’t make it a joint venture
Merely helping Canadian law enforcement comply with an MLAT request from the United States was not a joint venture. United States v. Kachkar, 2020 U.S. Dist. LEXIS 222738 (S.D. Fla. Nov. 30, 2020). Defendant’s cell phone was seized at the … Continue reading
CA9: 911 call about man waving a gun justified stop at gunpoint and handcuffing
Officers’ display of firearms and handcuffing defendant in a detention after a 911 call of a man waving a gun was reasonable under Terry. United States v. Hearns, 2020 U.S. App. LEXIS 37363 (9th Cir. Nov. 27, 2020). Defendant was … Continue reading
KS: Looking in purse of unconscious driver was reasonable
The emergency aid exception applied: “Officer Brown searched Smith’s purse seeking Smith’s identity and any information that would explain the nature of Smith’s condition and the best means of treating it. When the officer made this decision, the paramedics were … Continue reading
WaPo: Senators seek IG probe of border agency’s warrantless use of phone location data
WaPo: Senators seek IG probe of border agency’s warrantless use of phone location data by Drew Harswell (“In August, Customs and Border Protection subscribed to a service that reports the location of cellphones to businesses.”)
