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ABA Journal Web 100, Best Law Blogs (2017); ABA Journal Blawg 100 (2015-16)
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© 2003-20,
online since Feb. 24, 2003
WebPage Visits: real non-robot hits since 2010; approx. about 30,000 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)
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
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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: Probable cause
E.D.Wis.: Clerical error in attaching wrong SW to affidavit where there were more than one for def could be corrected
A clerical error in attaching the wrong affidavit to multiple search warrants for defendant’s property could be read through and corrected. As to the probable cause, the affidavits showed it and the good faith exception would apply. United States v. … Continue reading
OH11: Trial court’s order denying unsealing SW affidavit in post-conviction case wasn’t final and appealable
In a post-conviction case, the trial court’s order denying a motion to unseal a search warrant affidavit to facilitate his case was not a final appealable order. State v. Miller, 2020-Ohio-5383, 2020 Ohio App. LEXIS 4231 (11th Dist. Nov. 23, … Continue reading
UT: When two grounds support an arrest, attacking only one means affirmance
“Devenpeck, along with Utah appellate law, is controlling here. Whether Officer possessed probable cause to arrest Sanchez for DUI is irrelevant. What is relevant is whether the objective circumstances—the ‘known facts,’ see Devenpeck, 543 U.S. at 153—provided probable cause for … Continue reading
OH2: Inventory and tow of vehicle disabled in accident was reasonable under community caretaking function
Defendant’s vehicle was inventoried and then towed by Dayton PD because it was disabled after an accident blocking a busy intersection. There was no warning to defendant it was going to happen. It was within the community caretaking function of … Continue reading
CA9: Officer opening car door and leaning inside was a search
“Because opening the car door and leaning into the car constituted an unlawful search under the Fourth Amendment, the panel considered what remedy is appropriate in this case. The panel held that the exclusionary rule applies to the loaded handgun … Continue reading
S.D.N.Y.: Mental health detentions don’t require actual showing of dangerous behavior; probability enough
A mental health detention “requires only a ‘probability or substantial chance’ of dangerous behavior, not an actual showing of such behavior.’” … Probable cause for involuntary hospitalization may be established from ‘information gleaned from informants[,] … normally the putative victim … Continue reading
CAAF: GFE doesn’t apply to SW wholly without PC
The service member was charged with child pornography offenses. “Appellant moved for an order in limine suppressing all evidence that the Government had found in Appellant’s home pursuant to a command authorization for search and seizure (CASS). The military judge … Continue reading
OH12: Drug dog’s alert to residual odor of drugs is not a lack of PC
A drug dog’s alert to the residual odor of drugs isn’t a lack of probable cause. “Accordingly, the fact that Mox [the drug dog] could have alerted to a residual odor of drugs does not mean that there was not … Continue reading
D.Neb.: PC for def’s vehicle leaving the scene of a shooting led to nexus to his house
“As explained, witnesses saw a dark colored vehicle speeding away from the scene of the May 27, 2020 shooting and at least two witnesses believe the vehicle was a Nissan. At the same time, police surveillance puts Defendant’s gray Nissan … Continue reading
FL2: CP SW affidavit was conclusory
The search warrant for child pornography here failed to describe the image and was conclusory. In addition, the officer didn’t state anything about his training in the area to identify child pornography. Goesel v. State, 2020 Fla. App. LEXIS 15413 … Continue reading
OH8: Smell of MJ justifies search of interior of car where it could be found
“Upon en banc consideration, we uphold the conclusion reached in Franklin, and reiterate that the heightened standard set forth in Farris does not apply to searches conducted within the passenger compartment of a vehicle. Consistent with the confines of Farris, … Continue reading
N.D.Ill. issues a geofence warrant to Google
This geofence warrant is issued with probable cause and it is particular because it is so limited in time and scope. In re Search Warrant Application for Geofence Location Data Stored at Google Concerning an Arson Investigation, 2020 U.S. Dist. … Continue reading
TX10: Texas’s art. 38.28 exclusionary rule instruction doesn’t apply to def’s own conduct
The ability to get an art. 38.23 exclusionary rule instruction for the jury depends on someone else’s wrongdoing, and not on the defendant’s own. It doesn’t apply to resisting arrest. Aguirre v. State, 2020 Tex. App. LEXIS 8524 (Tex. App. … Continue reading
S.D.Tex.: Arrest was with PC, despite lack of state grand jury indictment
Defendant was charged with child pornography after his computer system password was linked to it. A state grand jury declined to indict him. He sued under § 1983 in state court, and it was removed to federal court. “Without providing … Continue reading
CA8: Ptf stated a claim for false arrest and detention without PC
Plaintiff was arrested and detained for three weeks without probable cause. Taking his claims as true at this point, he stated a claim. Bell v. Neukirch, 2020 U.S. App. LEXIS 33920 (8th Cir. Oct. 28, 2020):
S.D.Iowa: Def’s SnapChat posts provided PC to search his vehicle
Defendant’s public social media posts (here, SnapChat) about his drug activities provided probable cause to search his vehicle for drugs. United States v. Manuel, 2020 U.S. Dist. LEXIS 199261 (S.D. Iowa Oct. 21, 2020):
