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- D.N.M.: DEA’s failure to make a detailed inventory in violation of policy doesn’t require exclusion of evidence
- WaPo: These cities bar facial recognition tech. Police still found ways to access it.
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- DC: Accepting a law license is consent to trust account subpoenas
- AR: RS def rented a hotel room was sufficient for search waiver; PC not required
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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,
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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: Border search
W.D.Tex.: A cell phone may be searched under the border search exception [CA5 to decide soon]
A cell phone may be searched under the border search exception. While the Fifth Circuit hasn’t decided the issue yet, it soon will be [see quoted n.4, infra]. United States v. Molina-Isidoro, 2016 U.S. Dist. LEXIS 183368 (W.D. Tex. Oct. … Continue reading
CNN: White House discussing asking foreign visitors for social media info and cell phone contacts
CNN: White House discussing asking foreign visitors for social media info and cell phone contacts by Jake Tapper:
S.D.Cal.: Def, a citizen of Mexico suspected of drug trafficking in his mother’s car, was lawfully arrested when he was lured to a border crossing to talk about her permanent resident status
Defendant’s mother, a citizen of Mexico who crossed regularly at Tecate, was arrested for importation of meth in her car, which she claimed was a gift from her son. Officers were looking for him and finally found him in Mexico … Continue reading
S.D.Cal.: Using Cellebrite to copy files on two phones and an iPad at the border was with RS and reasonable
A DHS officer took defendant’s Motorola phone, iPhone, and iPad from a Customs officer at the border when defendant was arrested for importing cocaine in her car. The Motorola phone wasn’t password protected, and it was examined with a Cellebrite … Continue reading
D.Md.: Extended border search from customs at JFK to locked warehouse in Maryland
The extended border search doctrine applied to a package shipped from China through customs at JFK and then to a warehouse in Bowie, Maryland. It was under lock and key, even on the truck, from customs to the warehouse where … Continue reading
EFF: Law Enforcement Uses Border Search Exception as Fourth Amendment Loophole
EFF: Law Enforcement Uses Border Search Exception as Fourth Amendment Loophole by Sophia Cope:
S.D.Cal.: SW which was not overbroad merely by including a “tending to show” phrase
Scanning text messages on a cell phone at the border was reasonable. This wasn’t a full search, and this was just a “non-forensic scan” of the phone and not a “searching inquiry.” This led, however, to a search warrant which … Continue reading
CA6: Turning around because of a wrong turn toward Canada doesn’t bar a border search coming back
Plaintiff made a wrong turn heading to summer camp and ended up on a bridge to Canada. He was allowed to turn around without leaving the country, but he could only get into a lane with motorists coming from Canada … Continue reading
FoxNews: Border Patrol’s website offers advice on eluding … Border Patrol
FoxNews: Border Patrol’s website offers advice on eluding … Border Patrol:
Broadly: Woman Subjected to Illegal Cavity Search at Border Gets $475,000 Settlement
Broadly: Woman Subjected to Illegal Cavity Search at Border Gets $475,000 Settlement by Diana Tourjee:
D.Ariz.: Border exit searches are permissible to assure compliance with the currency reporting laws
Border exit searches are permissible without reasonable suspicion to assure compliance with the currency reporting laws. United States v. Chavira, 2016 U.S. Dist. LEXIS 88681 (D.Ariz. May 19, 2016), adopted 2016 U.S. Dist. LEXIS 88680 (D.Ariz. July 7, 2016):
CA5: Roving Border Patrol stop satisfied Brignoni-Ponce standard
“In determining reasonable suspicion in the context of roving Border Patrol stops, courts examine the totality of the circumstances, including the factors enunciated in Brignoni-Ponce. … These are (1) the area’s proximity to the border; (2) the characteristics of the … Continue reading
D.Guam: Def’s detention at Customs for 13 hours for SW for rectum was based on RS
Defendant’s 13 hour detention at airport customs was reasonable where it was based on a report from a CI that defendant would arrive from Manila with drugs hidden in his rectum. A dog also alerted on him in the luggage … Continue reading
S.D.Cal.: Riley does not apply to a search of a cell phone at the border
Riley does not apply to a search of a cell phone at the border. Calling it “investigatory” doesn’t add anything to the argument. “[A]n entire body of jurisprudence has been built around border searches, and the specific lexicon used by … Continue reading
D.Neb.: Controlled buys and watching def to go his storage unit for more was PC
Defendant had been coming and going from a storage unit where the police knew he stored methamphetamine. “There had been controlled purchases of methamphetamine directly from Leyva-Martinez. Officer Milone and other OPD officers had sufficient probable cause to stop the … Continue reading
E.D.Va.: The gov’t had individualized suspicion for a forensic border search of def’s cell phone
The post-arrest, off-site forensic search of defendant’s phone was instead a border search, which did not require a warrant supported by probable cause. The first search of defendant’s phone conducted at the airport was a routine border search that did … Continue reading
D.Ariz.: Def’s apparently grabbing a package launched over the border fence was RS
Border Patrol officers at Nogales watching over the border saw a launching device to throw bundles over the border fence, and they tried to see where the packages landed to round them up. Defendant was seen matching the description of … Continue reading
VICE: The Future of Border Securing Technology Is Here and It’s Terrifying
VICE: The Future of Border Securing Technology Is Here and It’s Terrifying by Meredith Hoffman: At the Tenth Annual Border Security Expo in San Antonio, Texas, officials from the Department of Homeland Security browsed booths with 3D holographic images, portable … Continue reading
S.D.Cal.: A cursory search of a cell phone of a person arrested for importation of drugs was permissible under the border search exception
A cursory search of a cell phone of a person arrested for importation of drugs was permissible under the border search exception. This was no deep forensic evaluation. Defendant also showed standing in the cell phone in his possession. “Specifically, … Continue reading
CA3: Handle of a gun satisfies “immediately apparent” requirement of plain view
Defendant was stopped because the officer already knew that defendant was driving without a license. The search of the car was justified by the handle of a gun being in plain view sticking out from under the seat, and it … Continue reading