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- E.D.Okla.: Housing authority’s warning of a pest inspection permitted under lease agreement amounts to no REP
- IN: Warrantless pulling on a loose car door panel was with PC and reasonable
- E.D.N.Y.: RS required for non-routine customs cell phone search
- Law360: Open Questions In Unsettled Geofence Warrant Landscape
- S.D.W.Va.: Reasonable during a traffic stop to ask about firearms in the car
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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 (27,400+ on WordPress as of 7/23/24) -
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Fourth Amendment cases,
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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)
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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: Consent
E.D.Okla.: Housing authority’s warning of a pest inspection permitted under lease agreement amounts to no REP
The housing authority told plaintiff they were coming in for a pest inspection and did under the conditions of the lease. That was reasonable, and there was no violation of a reasonable expectation of privacy when the inspectors saw drugs. … Continue reading →
AL: Officer being unable to differentiate smell of MJ and hemp doesn’t negate PC
“Because probable cause does not require certainty, but only probability, we agree with the trial court that the fact that officers cannot distinguish between hemp and marijuana based on odor alone ‘does not void probable cause.’ … Other jurisdictions have … Continue reading →
OR: Exclusionary rule doesn’t apply to criminally dangerous person civil commitments
Neither the state nor federal exclusionary rule does not apply in criminal dangerous person civil commitments. State v. T.L.B. (In re T.L.B.), 335 Or. App. 225 (Sep. 25, 2024). The officer here saw defendant walking at night in a neighborhood … Continue reading →
WY: Dog sniff of already parked car didn’t require RS
Defendant left his car at a convenience store’s gas pumps for 30-40 minutes. The police dog sniff while it was parked was not unreasonable. It was not a stop to be extended. Labbe v. State, 2024 WY 99, 2024 Wyo. … Continue reading →
FL6: Handicapped parking violation justified stop
Illegally parking [actually standing] in a handicapped spot was an objective basis for defendant’s stop. State v. Diaz, 2024 Fla. App. LEXIS 7143 (Fla. 6th DCA Sep. 13, 2024).* Defendant’s mother’s consent was validly obtained just as a protective sweep … Continue reading →
M.D.Ala.: Under Evans, DV OP justified stop that led to inventory even though it had unknowingly been set aside
The officer reasonably relied on a report from dispatch that defendant had a DV order of protection against him by his wife. After the stop and the inventory for towing his car, his estranged wife showed up with a copy … Continue reading →
D.Kan.: Reinstalling a deleted app to an iPhone to get to def’s account exceeded the scope of consent to search the phone
Defendant consented to a search of his iPhone, but here the officer reinstalled the Telegram app and then used it to search defendant’s Telegram account, finding child porn. All this exceeded his consent. There is no case in point because … Continue reading →
OH10: Mental health facilities are heavily regulated and consent to administrative searches
Residential mental health facilities are heavily regulated and consented to inspections as a condition of licensing. My Friend’s Place in Unity v. Ohio Dep’t of Mental Health, 2024-Ohio-3257, 2024 Ohio App. LEXIS 3067 (10th Dist. Aug. 27, 2024). Plaintiff’s Fourth … Continue reading →
NE: Despite municipal code requiring refusal of consent, 4A doesn’t require that before SW issues
The Omaha Municipal Code required refusal of consent before an inspection warrant is issued. The officer had probable cause for code violations when he sought the warrant. The warrant will not be suppressed because there is no Fourth Amendment requirement … Continue reading →
CAAF: Remote erasure of seized cell phone supported tampering conviction
Defendant’s conviction for interfering with a seizure under UCMJ 131e is affirmed. NIS had seized the phone but not yet put it in a Faraday bag to protect it when she remotely erased it. United States v. Strong, 2024 CAAF … Continue reading →
N.D.Ga.: Having cell phone at scene of crime justifies its seizure under plain view
There was justification for the plain view seizure of defendant’s cell phone when it came to the scene of the crime with him. United States v. Dulaney, 2024 U.S. Dist. LEXIS 151204 (N.D. Ga. Aug. 23, 2024).* “Saldana-Alaniz fails to … Continue reading →
CA8: PC shown for SW for home in MMJ state on smell of marijuana plus other information
The fact there is medical marijuana in the state did not defeat the probable cause showing because there was also information about alleged sales from the property. Here, the police went to defendant’s home for a knock-and-talk and could smell … Continue reading →
N.D.Cal.: Seizure or destruction of homeless persons’ unabandoned personal property violated 4A
“This case is similar to Lavan where the Ninth Circuit stated that when the City of Los Angeles destroyed unhoused Plaintiffs’ unabandoned personal possessions left on public sidewalks, those seizures were unreasonable under the Fourth Amendment. 693 F.3d at 1030. … Continue reading →
CA5: 4A doesn’t require officer have an arrest warrant in hand or to have even read it
There is no Fourth Amendment requirement that the officer have read or have in hand an arrest warrant. United States v. Moore, 2024 U.S. App. LEXIS 19668 (5th Cir. Aug. 6, 2024). The officers’ use of force here was reasonable … Continue reading →
WI: Initial PC and bail determination not critical stage, but if it becomes more, yes
While the probable cause and bail decision itself is not a critical stage, the post-arrest process of determining bail is the critical stage point where the right to counsel attaches. Here, an identification procedure was included. State v. Robinson, 2024 … Continue reading →
DE: Inevitable discovery can’t be based on speculation
The state’s argument on inevitable discovery is really based on speculation, and that’s not enough. State v. Franks, 2024 Del. Super. LEXIS 561 (Aug. 1, 2024). Plaintiff was arrested for drugs, held five months, then released. “We hold that the … Continue reading →
CA4: Unlocking a door to police knocks and opening it slightly is not consent to enter
Unlocking a door, here that opens out, when the police are knocking is not implied consent to enter. Quinn v. Zerkle, 2024 U.S. App. LEXIS 19154 (4th Cir. Aug. 1, 2024). There was a reckless geographical error in the affidavit … Continue reading →
W.D.N.Y.: When police are told their arrestee isn’t in the house, they don’t have to believe it
When the police arrive for an arrest and the occupants say the guy they’re looking for isn’t there, police don’t have to credit that and just leave. Green-Page v. United States, 2024 U.S. Dist. LEXIS 134563 (W.D.N.Y. July 30, 2024)* … Continue reading →
CA8: “Reasonable grounds” in defendant’s probation search agreement means reasonable suspicion
“Reasonable grounds” in defendant’s probation search agreement means reasonable suspicion. United States v. Gaston, 2024 U.S. App. LEXIS 18600 (8th Cir. July 29, 2024). The company here orally consented to an administrative search for a workplace violation. While the notice … Continue reading →
Ind.Tax: There’s a difference between “curtilage” in state tax law and the 4A
“While search and seizure law and property tax law are distinct in their legal frameworks and objectives, the definition of ‘curtilage’ used in search and seizure inquiries under the Fourth Amendment to the United States Constitution does not contain any … Continue reading →