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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
www.johnwesleyhall.com© 2003-23,
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 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)
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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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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“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!”
"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: Consent
GA: Unjustified protective sweep suppressed
The “security sweep” of defendant’s dwelling violated the Fourth Amendment. No justification for the entry and no exigent circumstances were shown. Defendant’s alleged consent came after the unlawful entry. Denial of suppression reversed. Thompson v. State, 2023 Ga. App. LEXIS … Continue reading →
NM: State had to support search incident to arrest of def’s purse at suppression hearing and didn’t
Defendant’s purse over the shoulder was not part of her person. It was removed from her and later searched incident to arrest. The state failed to support the search incident doctrine at the suppression hearing of where the purse was … Continue reading →
WV: When asked for consent to search his house, def said ‘F*** it. Come on.’ That was consent.
“After some discussion of his choice to voluntarily agree to a search or wait until a search warrant was obtained, petitioner left the trooper’s vehicle, saying words to the effect of ‘F*** it. Come on.’ He walked toward his house … Continue reading →
M.D.Tenn.: Repeatedly re-asking for consent to search cell phone doesn’t make it coercive
“Guerrero argues he was coerced into consenting to the search because the agents continued to ask for consent after he avoided answering the question and they threatened to obtain a search warrant if he did not consent. True, the agents … Continue reading →
FL6: Search incident of backpack and fanny pack removed before stop was unreasonable
Defendant was stopped on a bicycle. His backpack and fanny pack were removed from him and placed on the hood of the police car. The search incident doctrine did not apply to them under Gant. They were out of his … Continue reading →
DC: Juvenile’s mother who owned cell phone and account could consent to search of the phone
A juvenile’s mother who had the child’s cell phone in her name because she bought it and it was on her account and the child lived with her gave her apparent authority to consent to search of the phone. In … Continue reading →
OR: All electronic devices seized to be searched require PC showing
The affidavit for warrant did not show justification for search of all the electronic devices that were seized and then searched. State v. Cannon, 299 Ore. App. 616, 450 P.3d 567 (2019). (Probable cause was conceded as to some devices.) … Continue reading →
N.D.Ind.: No IAC where def pled but co-def prevailed on 4A claim
Defendant entered into a beneficial plea agreement and pled to a superseding information and was sentenced. Later, the passenger in his car filed a motion to suppress and prevailed. Still, this was not ineffective assistance of his counsel. “Aside from … Continue reading →
N.D.Ohio: Passenger’s false info justified extending stop
“Based upon all of the above, the roughly 2 minutes and 23 seconds that Sergeant Perrin spent trying to determine why the passenger had given his false information was not an unreasonable extension of the duration of stop.” United States … Continue reading →
NM: Passenger’s lie about age was RS to continue stop
The passenger’s admitted lie about his age was reasonable suspicion to continue the stop. He wasn’t forthcoming in giving his age and first lied about it. It was permissible to ask the passenger about his identifiers. State v. Vasquez-Salas, 2023 … Continue reading →
D.S.D. & OH5: When challenging another court’s SW, it has to be filed with the papers for the court to rule
Defendant challenges the tribal search warrant as lacking probable cause and being vindictively obtained, the latter of which does not exist under Rule 41. He fails to include the warrant papers so the court can’t rule. United States v. Floyd, … Continue reading →
S.D.Ga.: Probation search waiver valid despite def not signing it
Defendant’s probation Fourth Amendment waiver was still valid by law despite the fact he hadn’t signed the form. United States v. Crawford, 2023 U.S. Dist. LEXIS 140719 (S.D.Ga. July 7, 2023), adopted, 2023 U.S. Dist. LEXIS 139645 (S.D. Ga. Aug. … Continue reading →
CA10 doesn’t have to decide whether furtive movement alone supports vehicle protective sweep
Furtive movements alone may or may not be enough to justify a protective sweep of a car, a question this circuit has never decided. Here, however, there was the additional fact of a “slow roll” to a stop which was … Continue reading →
VT: 14-year-old sex assault victim had sufficient common authority to consent to search of premises for evidence of that crime
Defendant was accused of sexual assault of his 14-year-old daughter, he was arrested, and released on conditions, one of which was a no contact order to say away from the house. The 14-year-old had enough common authority to consent to … Continue reading →
Cal.4: Parole search that wasn’t “harassing, arbitrary, or capricious” was reasonable
The parole search was valid. “Defendant offers no argument that the search qualified as harassing, arbitrary, or capricious.” People v. Session, 2023 Cal. App. LEXIS 549 (4th Dist. July 19, 2023). Defendants were stopped in a go fast vessel (GFV) … Continue reading →
W.D.Mo.: No standing in a stolen car
No reasonable expectation of privacy [standing] in a stolen car. United States v. Burkhalter, 2023 U.S. Dist. LEXIS 120556 (W.D. Mo. July 13, 2023). On a probation search, “Applying these principles, the Court finds that Brooks has failed to meet … Continue reading →
MD: Withdrawal of consent to computer search extended to copy of hard drive police made
“[D]efendant had reasonable expectation of privacy in data stored on his laptop’s hard drive, whether data was electronically stored on his hard drive or government’s copy of hard drive made with defendant’s consent. Defendant’s reasonable expectation of privacy was not … Continue reading →
S.D.Iowa: Accosting a person carrying a gun in an open carry state lacked RS
After Iowa permitted open carry, accosting defendant for carrying a firearm lacked reasonable suspicion. United States v. McMillion, 2023 U.S. Dist. LEXIS 117283 (S.D. Iowa June 30, 2023). The search warrant for defendant’s cell phone permitted a search by use … Continue reading →
D.P.R.: Indicted fugitive can have standing in a place even using an alias
Defendant being an unindicted fugitive using a false name still had a reasonable expectation of privacy in the place he was staying. This is different from the government’s authority involving convicted escapees. United States v. Cotto-Cruz, 2023 U.S. Dist. LEXIS … Continue reading →
E.D.Cal.: “No viable Takings Clause claim occurs when property has been disturbed by a lawful search warrant.”
“No viable Takings Clause claim occurs when property has been disturbed by a lawful search warrant. See AmeriSource Corp. v. United States, 525 F.3d 1149, 1154 (Fed. Cir. 2008) (‘so long as the government’s exercise of authority was pursuant to … Continue reading →
