Archives
-
Recent Posts
- CA5: Even if parole search was to aid criminal investigation, it was still reasonable
- IN: Cell phone linked to murder by TM sent before; PC for search
- C.D.Cal.: Inquiry into actions of others besides the officers involved in search is a new Bivens claim and barred
- D.Minn.: Regular CI had “extensive knowledge of street gangs, firearms, and narcotics distribution”; there was PC
- (no title)
-
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 -
© 2003-24,
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) -
~~~~~~~~~~~~~~~~~~~~~~~~~~
Fourth Amendment cases,
citations, and links -
Latest Slip Opinions:
U.S. Supreme Court (Home)
Federal Appellate Courts Opinions
First Circuit
Second Circuit
Third Circuit
Fourth Circuit
Fifth Circuit
Sixth Circuit
Seventh Circuit
Eighth Circuit
Ninth Circuit
Tenth Circuit
Eleventh Circuit
D.C. Circuit
Federal Circuit
Foreign Intell.Surv.Ct.
FDsys, many district courts, other federal courts
Military Courts: C.A.A.F., Army, AF, N-M, CG, SF
State courts (and some USDC opinions)
Google Scholar
Advanced Google Scholar
Google search tips
LexisWeb
LII State Appellate Courts
LexisONE free caselaw
Findlaw Free Opinions
To search Search and Seizure on Lexis.com $ -
Research Links:
Supreme Court:
SCOTUSBlog
S. Ct. Docket
Solicitor General's site
SCOTUSreport
Briefs online (but no amicus briefs)
Oyez Project (NWU)
"On the Docket"–Medill
S.Ct. Monitor: Law.com
S.Ct. Com't'ry: Law.com
-
General (many free):
LexisWeb
Google Scholar | Google
LexisOne Legal Website Directory
Crimelynx
Lexis.com $
Lexis.com (criminal law/ 4th Amd) $
Findlaw.com
Findlaw.com (4th Amd)
Westlaw.com $
F.R.Crim.P. 41
www.fd.org
Federal Law Enforcement Training Center Resources
FBI Domestic Investigations and Operations Guide (2008) (pdf)
DEA Agents Manual (2002) (download)
DOJ Computer Search Manual (2009) (pdf)
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
Privacy Foundation
Electronic Frontier Foundation
NACDL’s Domestic Drone Information Center
Electronic Privacy Information Center
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 -
"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)
Website design by Wally Waller, Little Rock
Category Archives: Probable cause
IN: Cell phone linked to murder by TM sent before; PC for search
Defendant’s cell phone was linked to the murder by a witness saying that the meet was set up by text messages and more. Banks v. State, 2024 Ind. App. LEXIS 66 (Mar. 15, 2024):
D.R.I.: SW affidavit that failed to incorporate what it said it was failed to show PC and thus no GFE
The affidavit for warrant was supposed to incorporate by attaching other stuff. The officer swore to it, but the stuff wasn’t there. The good faith exception is denied because it remained bare bones. United States v. Medina, 2024 U.S. Dist. … Continue reading
TN: Even if search occurred before SW issued, affidavit mentions nothing of it; thus independent source
Defendant claimed that his place was warrantlessly searched before the search warrant for it was issued. Doesn’t matter: The affidavit for the warrant shows probable cause and never mentions a prior search. State v. Quinn, 2024 Tenn. Crim. App. LEXIS … Continue reading
D.N.M.: No GFE for a Franks violation
Defendant met his Franks burden and showed a false statement in the affidavit for search warrant that was material to the probable cause finding. The statement was from the chief to the affiant. Finally, there is no good faith exception … Continue reading
W.D.N.C.: Def agreed to electronic monitoring as a condition of release
Defendant agreed to electronic monitoring as a condition of release, so it was admissible in evidence. United States v. Anthony, 2024 U.S. Dist. LEXIS 40422 (W.D.N.C. Mar. 6, 2024). Defendant’s improper lane change was seen in the rearview mirror, so … Continue reading
OH5: Officer’s writing wrong statute number on ticket was a reasonable mistake of law
Defendant’s stop for a loud muffler was reasonable. His claim that it wasn’t loud on the bodycam is rejected. Another alleged offense cited the wrong statute. That’s a reasonable mistake of law. State v. Braucher, 2024-Ohio-811, 2024 Ohio App. LEXIS … Continue reading
M.D.Pa.: Ordering driver out of car doesn’t extend it for Rodriguez purposes
Ordering the driver out of the car is incidental to the mission of the stop and doesn’t extend it for Rodriguez purpses. United States v. Brabham, 2024 U.S. Dist. LEXIS 36681 (M.D. Pa. Mar. 1, 2024). While the smell of … Continue reading
D.Conn.: That accomplices communicated by text messaging justified SW for cell phone
This cell phone was with probable cause and was particular. “Here, the warrant affidavits clearly established probable cause to conclude that Sinisterra was involved in all three shootings described therein. He was implicated by two individuals who corroborated each other … Continue reading
NY2: SW for def’s cell phone browser history lacked PC, but here it was harmless error
“The defendant correctly contends that the police search of his browsing history and URLs of his Blackberry cell phone was not authorized by the search warrant obtained by the police. ‘To establish probable cause, a search warrant must provide sufficient … Continue reading
D.S.C.: Speeding stop justified even if dashcam video is inconclusive
The stop was justified: “In this case, although the dash cam footage is inconclusive of Officer Dudley’s visual estimate of speed, no evidence was put forth that cast doubt on Officer Dudley’s ability to estimate speed. Further, additional indicia of … Continue reading
CA5: Burden on def to show smell of MJ in car was from lawful use
If one is claiming that prior use of marijuana in the car is lawful, thus defeating probable cause, the burden is on him or her. United States v. Goldsmith, 2024 U.S. App. LEXIS 4405 (5th Cir. Feb. 26, 2024).* [Except … Continue reading
CA6: DEA SW for tableting machine lacked PC, but GFE exception saves search
“The facts of this case are undisputed. On October 20, 2021, Brett Dauphinais ordered a tableting machine, a device that retails for thousands of dollars and allows the user to make food or drug tablets. Tableting machines can be used … Continue reading
E.D.N.Y.: Under Bruen, possibility def is licensed to carry in NYS defeats PC
Even under NYS’s firearm licensing scheme, mere possession of a firearm isn’t probable cause the person in possession is committing crime because he might be licensed. “The question before the court in this case is whether, after the Supreme Court’s … Continue reading
CA7: Rodriguez time argument waived by failure to specifically plead it below
“At the outset, we note that Johnson did not challenge the length or validity of the dog sniff in the district court. The record therefore does not contain information crucial to the Rodriguez inquiry, such as whether Deputy Haber acted … Continue reading
NY Queens: Even a stop for an apparent trivial traffic offense requires full constitutional analysis
When the police make what appears to be a trivial traffic stop, the court still has to make a proper analysis lest the court become a rubber stamp for the police. People v. Davis, 2024 NY Slip Op 24041, 2024 … Continue reading
N.D.Ohio: Drug lab results from controlled buy not required for PC
The government had probable cause for the search warrant for defendant’s house despite the fact that the drugs previously bought from him hadn’t come back from testing at the crime lab. United States v. Clark, 2024 U.S. Dist. LEXIS 24651 … Continue reading
D.Minn.: Neither PC nor RS required to look into a stopped vehicle’s windows
Neither probable cause nor reasonable suspicion required to look into a stopped vehicle’s windows. United States v. Walker, 2024 U.S. Dist. LEXIS 22075 (D. Minn. Feb. 8, 2024). Defendant’s social media account with pictures of him holding guns and recorded … Continue reading
FL2: Suppression under Franks reversed; not material to PC
Defendant established that there were false statements in the affidavit for warrant that ran the full spectrum from negligence to likely intentionality. But probable cause remained, even excluding what was challenged. “While the temptation to advance the prophylactic purpose of … Continue reading
S.D.Ill.: Odor of marijuana coming from a car is PC in this federal circuit even if it’s maybe not in state court anymore because of recreational use
The odor of marijuana coming from a car is probable cause in this circuit even if it’s maybe not be in state court anymore. United States v. Toney, 2024 U.S. Dist. LEXIS 20838 (S.D. Ill. Feb. 6, 2024). Qualified immunity … Continue reading