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- W.D.N.Y.: Def had no standing in a place he wasn’t allowed to be on parole
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- NYLJ: Analysis: Turnabout: Cell Site Location Information for the Defense
- CA11: QI in suicide by cop case
- CA11: Officer’s experience and opinions about CP collectors and retention of information is entitled to weight in PC determination
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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,
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--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: Probable cause
S.D.N.Y.: Policy directive for criminal court appearance strip searches presumptively public and not sealed
This is litigation over strip searches of detainees coming into the Manhattan Criminal Court building for court. A policy directive from another case litigated in 2018 is pertinent. The presumption of access to public records applies, and the directive will … Continue reading
D.Mass.: No PC here, and government’s GFE argument is generic and unhelpful
The affidavit for warrant here failed to show probable cause to believe a pill manufacturing operation would be found there. There was old information in the affidavit, but it was stale on its own. Also, defendants moved in the meantime … Continue reading
OH2: Pinging cell phone of suspect shortly after homicide was exigent
Pinging defendant’s cell phone to try to find him after he had shot three people seven hours apart was with exigent circumstances. This is already settled in this state. State v. Smith, 2023-Ohio-4565, 2023 Ohio App. LEXIS 4389 (2d Dist. … Continue reading
CA8: Truly bare bones affidavit for SW fails on GFE
Defendant here actually showed that the affidavit for search warrant was completely lacking in even an inference that defendant might have stolen property on his property. He was located nearby the primary offender, and his criminal history said nothing about … Continue reading
N.D.Okla.: A Terry stop can occur for civil infractions
A Terry stop can occur for noncriminal offenses, such as traffic citations. Here it was for vaping in the wrong place. United States v. Perez, 2023 U.S. Dist. LEXIS 218640 (N.D. Okla. Dec. 8, 2023). Volunteering one is armed “when … Continue reading
D.P.R.: Cell phone records obtained by SW not self-authenticating as evidence under 902(11)
Cell phone records obtained by warrant are not self-authenticating under F.R.E. 902(11). More will be required. United States v. Charbonier-Laureano, 2023 U.S. Dist. LEXIS 218249 (D.P.R. Dec. 5, 2023). The government’s knowledge fraud co-conspirators communicated by cell phone during period … Continue reading
NY1: Def’s Franks challenge denial and 7 year sentence summarily affirmed 7½ years later
“Defendant’s request for a Franks hearing was properly summarily denied. He failed to make a ‘substantial preliminary showing’ that the purported statements he made to his wife and at the precinct relating to his ownership of the vehicle were false … Continue reading
OH5: Put the affidavit for SW in the record at the suppression hearing
The affidavit for search warrant isn’t in the record on appeal, so the court presumes the regularity of proceedings in the trial court. The record that was made shows that there was probable cause. State v. Hill, 2023-Ohio-4381, 2023 Ohio … Continue reading
E.D.Cal.: Possession of enough to be a MJ distributor was PC even in a legal use state
The stop was justified because the taillights were “smoked out” and one couldn’t adequately see them. During the stop, the officer smelled marijuana, but he didn’t act on that alone. He asked questions, saw the medical marijuana card, but he … Continue reading
D.N.M.: Greyhound’s cooperation with the DEA doesn’t give rise to a 4A cause of action against it
Just because Greyhound cooperates with the DEA in Albuquerque doesn’t mean it can be sued there under the Fourth Amendment. Fernandez v. Greyhound Lines, Inc., 2023 U.S. Dist. LEXIS 211564 (D.N.M. Nov. 28, 2023). Homeless in Los Angeles likely had … Continue reading
TX7: Four county highspeed chase was RS
Defendant’s argument failed that a license plate reader hit couldn’t provide a basis for a stop when he went on a four county highspeed chase when the police tried to stop him. Landers v. State, 2023 Tex. App. LEXIS 8817 … Continue reading
OH8: Extraterritorial stop by LEO doesn’t violate 4A, and exclusionary rule doesn’t apply to statutory violations
An extraterritorial stop by an officer does not violate the Fourth Amendment. The exclusionary rule doesn’t apply to statutory violations, here especially because of public safety concerns. City of Fairview Park v. Bowman, 2023-Ohio-4210, 2023 Ohio App. LEXIS 4047 (8th … Continue reading
M.D.Ga.: Knock and talk limited to area immediately adjacent to front door
“The knock and talk exception has two limitations: (1) it is geographically limited to the front door or a ‘minor departure’ from it. … And (2) it no longer applies if an officer’s behavior ‘objectively reveals a purpose to conduct … Continue reading
N.D.Cal.: Passwords are protected by the Stored Communications Act
In civil case for evidence production brought in San Francisco to aid litigation in Ontario, Canada. the court holds that account passwords are protected by the Stored Communications Act and there was no consent to disclosure. In re Path Network, … Continue reading
N.D.Iowa: Even though stop showed def wasn’t impaired, DL and LPN could still be run
Even though defendant apparently wasn’t driving impaired, once validly stopped, the officer could run DL and LPN checks. The dog sniff didn’t prolong the stop at all. United States v. Drayton, 2023 U.S. Dist. LEXIS 206461 (N.D. Iowa Oct. 10, … Continue reading
N.D.Cal.: No REP in a computer possessed in a halfway house
Plaintiff had no reasonable expectation of privacy in a computer given him by Goodwill for whom he worked while he was living in a halfway house. He was still an inmate of the BOP. “There is no reasonable or legitimate … Continue reading
S.D.N.Y.: If the SW lacks PC, the remedy is a motion to suppress, not a motion to rescind the SW via 41(g)
Defendant filed a motion for the court to rescind the search warrant for his cell phone under Rule 41(g) because it was allegedly defective. The remedy is a motion to suppress, not to rescind. United States v. Cardenas, 2023 U.S. … Continue reading
S.D.Ind.: When a crime occurs in a car in front of the passengers, it’s reasonable to infer they were involved for PC purposes
When a suspected crime occurs in a car in front of the passengers, it is reasonable to infer, for probable cause purposes, that they are involved, comparing Di Re (1947) and Pringle (2003). United States v. Groves, 2023 U.S. Dist. … Continue reading