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- LA4: Merely having a concealed firearm isn’t RS for a frisk
- OR: Merely driving off the road wasn’t RS, but adding the driver’s demeanor at the time was
- OH6: Trial court’s failure to explain RS under Rodriguez required remand
- CA6: Asking def before a patdown during arrest what he had on him wasn’t barred by Miranda
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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)
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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: Tracking warrant
W.D.Mo.: No co-conspirator standing in GPS cell phone tracking
One co-conspirator has no standing in GPS tracking of his co-conspirator’s cell phone. The officers also had probable cause to search their car based on: knowledge they were cell phone store burglars, a Snapchat video with defendants having numerous cell … Continue reading
GA: Even if GPS tracker was unconstitutionally placed, it didn’t affect later SW for vehicle
Defendant first claimed the vehicle was his when the officer asked, and he consented to a search of it. After a few loose rounds of ammunition were found, he disavowed ownership. It turned out there was also a tracking device … Continue reading
OH6: Def’s neighbor was citizen informant in reporting seeing him looking at CP through an open window
Defendant’s neighbor could see him from his house masturbating to child pornography. He called the police and the police corroborated it but walked on the curtilage, too. The neighbor was shown as a confidential informant but was really a citizen … Continue reading
E.D.Mo.: Using cell site simulator with SW was reasonable and particular
A warrant supported by ample probable cause was used for a cell site simulator to find defendant’s cell phones. No conversations were captured. The USMJ compared it to a tracking warrant, which wasn’t unreasonable. The warrant was also constitutionally particular. … Continue reading
CNET: Geofence warrants: How police get data from all devices in targeted areas
CNET: Geofence warrants: How police get data from all devices in targeted areas by Alfred Ng (“The National Association of Criminal Defense Lawyers is also challenging the constitutionality of geofence warrants in a Virginia case. The organization argues that geofence … Continue reading
Lawfare: Do Geofence Warrants Violate the Fourth Amendment?
Lawfare: Do Geofence Warrants Violate the Fourth Amendment? by Nathaniel Sobel:
D.Mont.: Tracking warrant issue date was a typo; whether state law was complied with doesn’t matter in federal court
The tracking warrant issue date was mistaken. The court finds it was the latter of two dates, and the tracking occurred for only five days, within the requirements of Rule 41(e)(2)(C). Whether the tracking warrant complied with state law is … Continue reading
E.D.Tenn.: Collective knowledge doesn’t require the stopping officer even know about it
“‘[W]e impute collective knowledge among multiple law enforcement agencies, even when the evidence demonstrates that the responding officer was wholly unaware’ of the specific relevant facts. (Doc. 194, at 24 (quoting United States v. Lyons, 687 F.3d 754, 766 (6th … Continue reading
N.D.Ga.: Issues over the territorial jurisdiction of state issuing magistrate for geolocation information was subject to GFE
Defendants’ challenges to the state issuing magistrate’s jurisdiction over geolocation information that crosses jurisdictional lines were based on a Franks challenge that was negligence at worst and not an intentional misrepresentation as to the judge’s jurisdiction. Besides, as interesting as … Continue reading
D.Mont.: With court ordered pinging of cell phone, govt violated no REP in following the pings
Once officers had a warrant authorizing capturing defendant’s cell phone pings back even in 2015, he had no reasonable expectation of privacy in his movements in public when they were following him based on the result of the pings. Therefore, … Continue reading
DE: Slim inference for nexus wasn’t enough, and exclusionary rule applies
The affidavit for the search warrant creates only a slim inference at best, and no facts at all, showing a nexus to the place to be searched and the fraud crime under investigation. Therefore, the search warrant lacks probable cause … Continue reading
W.D.Va.: Arrest warrant didn’t have to be in hand at time of arrest
When defendant was arrested on an arrest warrant, it was constitutionally required that officers have the warrant in hand at the time of the arrest. Rule 4 only requires the warrant be shown as soon as practical. Defendant was arrested … Continue reading
N.D.Ga.: Hearsay is admissible in suppression hearings under Rule 104(a)
Hearsay is specifically admissible in suppression hearings [and issuing search warrants] under Rule 104(a). [After all, that’s how informant hearsay and collective knowledge work.] The court credits one officer as to what another told him in the probable cause for … Continue reading
CA9: Warrantless entry into def’s home after tracking device went off and created exigency
“The agents secured a court order authorizing insertion of a tracking device to conduct a controlled delivery of a package of methamphetamine, but their subsequent entry into defendant’s residence to secure the package was warrantless. [¶] The panel affirmed the … Continue reading
CA10: SW not needed to obtain GPS location information from parolee’s GPS monitor
Defendant was on community supervision with GPS monitoring. He does not contest that, just the fact the location information was obtained without a search warrant. The probation-parole search exception doesn’t require a search warrant to obtain that information. United States … Continue reading
W.D.N.Y.: Def had no REP in his passenger’s cell phone that was being tracked which incidentally tracked him
“Here, there is no evidence that Defendant had possession of, or any subjective privacy interest in, Mr. Daniels’ cell phone. Law enforcement did not observe Defendant using the tracked cell phone, and the cell phone was not registered to Defendant. … Continue reading
Engadget: Google faces surge in police requests for mobile location data
Engadget: Google faces surge in police requests for mobile location data by Jon Fingas:
CA1: Cell phones are not tracking devices, following CA7 & 3
“In affirming, we reject his arguments that there was error in the issuance of precise location information warrants (‘PLI warrants’) by a magistrate judge in Maine on a finding of probable cause, which allowed monitoring of the locations of Ackies’s … Continue reading
E.D.Mich.: Using state judge to get tracking warrant violated Rule 41, but court refuses to suppress for lack of prejudice or widespread violations
Officers used a state judge’s tracking warrant on defendant in technical violation of state law. It was not an isolated case. Nonetheless, defendant doesn’t show that he was prejudiced by this failure sufficient to justify applying the exclusionary rule. United … Continue reading
The Champion: Building on Carpenter: Six New Fourth Amendment Challenges Every Defense Lawyer Should Consider
The Champion: Building on Carpenter: Six New Fourth Amendment Challenges Every Defense Lawyer Should Consider by Michael Price and Bill Wolf (NACDL, Dec. 2018) at 20-25: The implications of the Supreme Court’s decision in Carpenter v. United States are just … Continue reading