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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© 2003-21,
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
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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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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
PA: With MMJ, smell of MJ alone isn’t PC for search of a car; more required
Because of medical marijuana being law in Pennsylvania, the smell of marijuana in a car alone is no longer enough for probable cause. More is required. Commonwealth v. Grooms, 2021 Pa. Super. LEXIS 79 (Feb. 24, 2021):
GA: Contraband in plain view on def’s property didn’t justify warrantless entry to seize it
Officers’ entry onto abandoned property next door to defendant’s place to get a better view of his place was reasonable. He had no reasonable expectation of privacy there or in the view from there. However, they saw contraband in plain … Continue reading
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
HI: No PC shown for blood search warrant; no alcohol smell and disorientation was likely from head trauma
The state did not attempt to exhaust any possibilities that defendant’s disorientation wasn’t caused by likely head trauma because there was no probable cause otherwise that defendant had consumed alcohol. The search warrant for blood should not have issued. State … Continue reading
OK Indian territory, McGirt v. Oklahoma, and the GFE
For a century, state officers investigated offenses on land that McGirt v. Oklahoma found were actually Indian lands. The good faith exception applies. The officer couldn’t have been expected to know that SCOTUS would finally hold as it did, and … Continue reading
CA3: Warrant for roving wiretap didn’t have to call device a “cell site simulator” when it fully described it
The government obtained a roving wiretap for defendant’s cell phone with a cell site simulator. In the warrant application, they described in detail what a cell site simulator was, but it never said the words “cell site simulator.” It doesn’t … Continue reading
CA10: Failure to specify CI’s criminal history didn’t make affidavit “bare bones” or justify a Franks hearing
Defendant was suspected of thefts of equipment from oil fields. An Oklahoma state investigator applied for a GPS warrant for defendant’s vehicle. The warrant was issued on probable cause with nexus, and the good faith exception applies. “Smith argues on … Continue reading
CA3: Failure to factually plead lack of PC or malice for a 4A malicious prosecution claim makes it fail
Karkalas v. Marks, 2021 U.S. App. LEXIS 3868 (3d Cir. Feb. 11, 2021):
D.N.M.: Tracing IP address to def does not require affiant exclude all other Internet users in area
Defendant was charged with stalking a former boss. A disguised email was traced by metadata to defendant’s router. His computer was searched, and the email was found. The question of probable cause for the search warrant does not require the … Continue reading
CA11: GFE applies even if no PC, which was “hotly contested”
The good faith exception supports this search warrant, even if there wasn’t probable cause after a trash pull, an issue not decided. The existence of probable cause was “hotly contested.” United States v. Morales, 2021 U.S. App. LEXIS 3260 (11th … Continue reading
CA6: SW for CP was completely lacking and GFE didn’t apply; no basis at all to search cell phone
A state search warrant was issued for alleged child porn on defendant’s computer and cell phone, and the district court suppressed for a clear lack of probable cause. The computer search required too many inferences to make probable cause. The … Continue reading
S.D.W.Va.: This trash pull didn’t produce direct drug evidence or corroborate CI, so PC lacking
“The evidence supporting probable cause in this case, assuming its accuracy and reliability, consists of (a) an unspecified “high” number of people visiting for very short periods during an unspecified time frame and (b) trash containing five plastic bags with … Continue reading
OR: Outstanding warrant on passenger alone doesn’t justify frisk of driver
The fact the passenger had an outstanding warrant didn’t show reasonable suspicion for a frisk of the driver for officer safety. State v. Goguen, 308 Ore. App. 706, 2021 Ore. App. LEXIS 75 (Jan. 27, 2021).* “We agree with the … Continue reading
CA8: Officer wins two § 1983 cases in same day from E.D. Mo., Cape Girardeau
The officer had cause for defendant’s stop for a broken taillight and then found a warrant for his arrest. “Wood also alleges that after the fact, Wooten fabricated evidence about the arrest (and then invoked his Fifth Amendment right about … Continue reading
E.D.Mich.: PC a close call, so GFE applies
“Ultimately, the Court need not decide which side of the Ramirez-Merriweather line [of probable cause] this case falls. It suffices to say that, especially because the search warrant affidavit makes no mention of any communications involving Jackson’s cell phone, it … Continue reading
M.D.Tenn.: SW affiants should err on side of more information, not less
“[T]he warrant affidavit established probable cause to search the Residence, based on a combination of the smell of marijuana emanating from the Residence and the marijuana stem recovered in the trash pull. The affidavit reveals that three different MNPD officers … Continue reading
