- D.Nev.: Affidavits for SWs don’t have to prove the underlying crimes
- D.V.I.: Flyover of curtilage from navigable airspace was reasonable
- NJ: Disputes in the facts on appeal show trial court should have held a hearing
- NY: Second SW for phone a year later after first SW failed to show PC wasn’t timely
- GA: Not objecting to mention of “probation” search at trial was not IAC
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
online since Feb. 24, 2003 Approx. 350,000 visits (non-robot) since 2012 Approx. 45,000 posts since 2003 (25,700+ on WordPress as of 12/31/22)
Fourth Amendment cases,
citations, and links
Latest Slip Opinions:
U.S. Supreme Court (Home)
Federal Appellate Courts Opinions
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)
Advanced Google Scholar
Google search tips
LII State Appellate Courts
LexisONE free caselaw
Findlaw Free Opinions
To search Search and Seizure on Lexis.com $
S. Ct. Docket
Solicitor General's site
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):
Google Scholar | Google
LexisOne Legal Website Directory
Lexis.com (criminal law/ 4th Amd) $
Findlaw.com (4th Amd)
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
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."
“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!”"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)
Website design by Wally Waller, Little Rock
Category Archives: Probable cause
CA7: Def seen on his way to a controlled buy was PC
There was probable cause for the search of defendant’s car stopped on the way to a controlled buy. United States v. Coates, 2023 U.S. App. LEXIS 6108 (7th Cir. Mar. 15, 2023).* Unreasonable responses from defendant stopping at a salvage … Continue reading
CA1: Waiver of 4A claim in lower court is waiver for appeal
Defendant explicitly waived his Fourth Amendment claim in the district court, so he can’t appeal it. United States v. Concepcion-Guliam, 2023 U.S. App. LEXIS 5830 (1st Cir. Mar. 10, 2023). Delaware’s loitering statute gives the officer the right to ask … Continue reading
CA3: SWs based on inference alone risk failing on nexus; here, however, GFE applies
The affidavit could have been stronger because more information was available and not provided the USMJ. All things considered, it wasn’t so devoid of probable cause that the good faith exception applies. The court cautioned: “As Magistrate Judges may draw … Continue reading
M.D.Ala.: Controlled buy 4 days earlier leading to SW comes in under 404(b)
Defendant’s motion in limine about a controlled buy four days before the warrant is denied. It comes in under 404(b). United States v. Neal, 2023 U.S. Dist. LEXIS 37649 (M.D. Ala. Mar. 7, 2023). “As already discussed at the motion … Continue reading
CA4: Unsworn information in the investigative file could be used to supplement the PC showing before issuing judge
“The district court correctly concluded that unsworn items in an investigatory file can be used to establish probable cause, and that there is nothing in the record to show that the magistrate judge failed to consider the information available to … Continue reading
CA9: Denying owner access to an impounded car for 30 days is an unreasonable seizure
Denying access to one’s car for 30 days after impoundment without justification was an unreasonable seizure under the Fourth Amendment. Untalan v. Stanley, 2023 U.S. App. LEXIS 4070 (9th Cir. Feb. 22, 2023). CI information led to surveillance then two … Continue reading
E.D.Wis.: Some inference on inference permitted in showing PC in affidavit
The affidavit here was not just piling inference on inference to attempt to show probable cause. This was an ongoing drug operation, and the probable cause is present despite some “inductive” reasoning. United States v. Merced, 2023 U.S. Dist. LEXIS … Continue reading
CA6: SW for home DVR failed to allege criminal evidence would be found and violates 4A
There was a fire in a shed that was likely caught by defendant’s home surveillance camera. He declined to turn it over to investigators investigating the cause of the fire. They don’t even know that the fire was arson. The … Continue reading
N.D.Miss.: Geofence warrant approved in 2018 USPS truck robbery
A geofence warrant is sustained on probable cause and particularity in a post office truck robbery where the driver was beaten in United States v. Smith, 2023 U.S. Dist. LEXIS 22944 (N.D. Miss. Feb. 10, 2023). While some later steps … Continue reading
W.D.Okla.: MJ user not barred from handgun possession under § 922(g)(3)
A marijuana user is not barred from possessing a handgun under Heller and Bruen under § 922(g)(3). The case makes passing reference to the Fourth and Second Amendments reflecting current rights in 1789. (It’s only here because it’s really interesting.) … Continue reading
CA4: GFE applied to SW application without PC but where two state court warrants followed up based on it
The government concedes there was no probable cause for the search warrant here, but two state judges also renewed the warrants based on the first one. That’s good faith. United States v. Jordan, 2023 U.S. App. LEXIS 2655 (4th Cir. … Continue reading
NJ: SDT for S&W records on use of its products in NJ was enforced; 1A and other claims preserved
Subpoenas for documents under the state Consumer Fraud Act about the ability of average consumers to use plaintiff’s firearms for personal or home defense were enforceable under the Fourth Amendment. Plaintiff’s claims under other amendments are preserved for later. Platkin … Continue reading
IL: Even with recreational MJ, smell in a car can provide PC; pre-rec precedent adhered to
Even with recreational marijuana, it has to be transported in odor proof containers, and that means the smell of marijuana remains probable cause in Illinois. People v. Hall, 2023 IL App (4th) 220209, 2023 Ill. App. LEXIS 12 (Jan. 25, … Continue reading
E.D.Tenn.: Backyard firepit was part of curtilage
A firepit in defendant’s yard (an “outdoor living area”) was part of the curtilage. The officer, however, was lawfully on the curtilage for a knock-and-talk. United States v. Thurman, 2023 U.S. Dist. LEXIS 9358 (E.D. Tenn. Jan. 19, 2023).* Sometimes … Continue reading
CA6: Potential defenses don’t undermine PC for arrest
Potential defenses to a case plaintiff was arrested for do not nullify the probable cause. Chiaverini v. City of Napoleon, 2023 U.S. App. LEXIS 865 (6th Cir. Jan. 11, 2023):
CA8: An attempted arrest isn’t a seizure, even without PC
“However, an attempted arrest alone, even if unsupported by probable cause, is insufficient to invoke Fourth Amendment protections against unreasonable seizures. See Hodari D., 499 U.S. at 626 (‘The word “seizure” … does not remotely apply … to the prospect … Continue reading
Army: Remotely wiping seized cell phone and watch tampered with search
The prosecution established defendant interfered with a search by remotely wiping her cell phone and watch when she knew they were in the possession of CID and to be searched in a manslaughter investigation. United States v. Strong, 2023 CCA … Continue reading
GA: Generalizations and experience do not support no-knock warrant
The no-knock provision in this search warrant was not based on a showing of necessity based on this case. It was based on experience and generalities. [In addition, defendant was supposedly standing in the front yard, so what about the … Continue reading