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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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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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ACLU on privacy
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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"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: Consent
CA6: Even if harassment was a basis to exclude a parole search, it wasn’t shown here
The exclusionary rule does not apply in supervised release revocation proceedings. Even if harassment by the officer was a basis to exclude, it wasn’t present here. United States v. Robinson, 2023 U.S. App. LEXIS 6756 (6th Cir. Mar. 21, 2023)* … Continue reading →
D.Kan.: Not responding to govt’s 4A alternative arguments de facto waiver
The government’s alterative theories to support the search were sufficient to avoid even deciding a good faith mistake of fact by the officers. Moreover, defendant never addressed the government’s alternative arguments in his briefing. United States v. Bell-Johnson, 2023 U.S. … Continue reading →
HI: Miranda warnings required whenever PC develops for arrest
“Miranda warnings are required by article I, section 10 of the Constitution of the State of Hawai’i when probable cause to arrest has developed. And in Hewitt’s case, contrary to the ICA’s conclusion, probable cause had developed before she was … Continue reading →
OH1: Defense counsel ineffective for not challenging state’s alleged consent after they announced “we’re going to be doing a search warrant here”
“The totality of the circumstances show that the signed consent-to-search form was not a product of consent, but an acquiescence to a claim of lawful authority.” “As Gaston complied with Davis’s instructions to sit in a chair on the porch, … Continue reading →
E.D.Tex.: Criminal trespass warning is not a 4A seizure
A criminal trespass warning is not a Fourth Amendment seizure. Shaikh v. Allen City Council, 2023 U.S. Dist. LEXIS 43571 (E.D. Tex. Feb. 8, 2023),* adopted, 2023 U.S. Dist. LEXIS 42228 (E.D. Tex. Mar. 13, 2023).* A DEA stop of … Continue reading →
E.D.Mich.: Stop at the Detroit Greyhound bus station lacked RS
Defendant was accosted as he was getting on a Greyhound bus in Detroit and blocked from getting on the bus and asked to produce his ID, ticket, and cell phone. He said he didn’t have his ID and gave the … Continue reading →
NJ: Entering def’s driveway to get better look at his house violated curtilage
Officer’s entry onto defendant’s driveway to get a better look at his house violated curtilage. State v. Ingram, 2023 N.J. Super. LEXIS 13 (Feb. 13, 2023). As for a suggestion of leniency for cooperation and consent, “TFO Vasquez’s statements fall … Continue reading →
N.D.Ill.: Obtaining mobile IP address not governed by Carpenter
In a child exploitation case, the government admitted that the state search warrant in another state wasn’t as detailed as they’d have done, but it still showed probable cause and was supported by the good faith exception. The mobile IP … Continue reading →
OH7: Computers are portable, and PC (nexus) moves with them
There was probable cause for child pornography in defendant’s computers in his temporary home he was occupying after a fire at his home. Computers are highly portable and can easily move from place to place. State v. Boyd, 2023-Ohio-271, 2023 … Continue reading →
VA: Statute passed one year after search that smell couldn’t be basis didn’t apply retroactively
A statute passed a year after this search that the odor of marijuana was no longer probable cause didn’t apply retroactively here. It says “in violation of this statute,” so that’s prospective only. Loeper v. Commonwealth, 2023 Va. App. LEXIS … Continue reading →
CA2: Arrested at gunpoint, handcuffed, and unMirandized, def still consented
Defendant had been arrested and handcuffed and officers had weapons drawn, and he hadn’t yet been Mirandized. Still, on the totality, he consented to the search. United States v. Collins, 2023 U.S. App. LEXIS 1257 (2d Cir. Jan. 19, 2023). … Continue reading →
E.D.Tex.: Govt failed to prove traffic offenses or any RS for stop
There was no justification for defendant’s traffic stop based on two statutes that weren’t violated. The government’s assertion of reasonable suspicion from an anonymous tip also failed. United States v. Salazar, 2022 U.S. Dist. LEXIS 234747 (E.D. Tex. Dec. 12, … Continue reading →
CA10: Traffic stop to flirt with motorist was unreasonable, and clearly established that cause needed
The officer’s stop of plaintiff to flirt with her was without basis and thus unreasonable, and clearly established. Shepherd v. Robbins, 2022 U.S. App. LEXIS 36056 (10th Cir. Dec. 13, 2022) [corrected Dec. 28, 2022]. Defense counsel wasn’t ineffective for … Continue reading →
D.Minn.: Issuance of an arrest warrant can justify a tracking warrant for suspect
“The Court agrees with essential premise of the R&R: that probable cause existed for the tracking warrant because there was probable cause for the arrest warrant. First, Mr. Ellerman cites no authority for the idea that using a judicially approved … Continue reading →
FL4: Collective knowledge doctrine with anonymous or confidential sources requires passing details on to fellow officer
When the collective knowledge rule applies to information from an anonymous or confidential source, the officer using the information has to have actual knowledge of the factors supporting its reliability. Zarcadoolas v. Tony, 2023 Fla. App. LEXIS 26 n.3 (Fla. … Continue reading →
D.Minn.: Placing GPS on vehicle 2.5 hours before SW issued didn’t require suppression
“This Court concludes that the supporting affidavit for the GPS tracking warrant establishes probable cause.” “Here, it is undisputed that when the GPS tracking device was placed on the gold Chevy Tahoe at approximately 5:00 p.m. on March 3, 2022, … Continue reading →
Nevada recognizes a private right of action for violation of the state constitution’s search and seizure guarantee
Nevada recognizes a private right of action for violation of the state constitution’s search and seizure guarantee. Plaintiff sued in federal court for a strip search going into a prison that produced nothing and also resulted in her being barred … Continue reading →
S.D.Ill.: Overheard comment CI would be harmed was RS for stop
Overheard information that defendant was traveling to Cape Girardeau, Missouri to harm a CI was reasonable suspicion for his stop. When a dog alerted, too, that permitted a search anywhere in the car where drugs could be hidden. United States … Continue reading →
CA4: When officer asked to pat him down, def raised his arms, and that’s consent
When the officer asked to pat him down, defendant raised his arms. That was consent. There was also reasonable suspicion. United States v. Pentecost, 2022 U.S. App. LEXIS 34656 (4th Cir. Dec. 15, 2022).* “[I]n-home interviews are presumptively non-custodial.” United … Continue reading →
D.S.C.: “The victim’s lack of cooperation alone does not vitiate probable cause.”
Once probable cause arose, “The victim’s lack of cooperation alone does not vitiate probable cause.” Ebersole v. Lex Co Pub. Defs. Office, 2022 U.S. Dist. LEXIS 224874 (D.S.C. Nov. 22, 2022). The leaseholder was a co-resident and she had the … Continue reading →
