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- CA6: Electronic devices were “property under his control” subject to search while on supervised release
- N.D.Tex.: PC and GFE questions were close, and that’s good enough
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- N.D.Ga.: Exigency shown for warrantless entry to prevent destruction of drugs
- E.D.Cal.: Failure to provide medical care to an arrestee can be a 4A issue
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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,
citations, and 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)
--Federal Laws Relating to Cybersecurity: Discussion of Proposed Revisions (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: Search incident
D.N.J.: Fictitious tags stop justifies SI
Based on circuit authority, a stop and arrest for fictitious tags justifies a search incident on the driver. United States v. Jones, 2024 U.S. Dist. LEXIS 161352 (E.D. Wis. Sep. 9, 2024), quoting United States v. Travis, 2023 U.S. App. … Continue reading
S.D.Ind.: Handwritten alterations to SW were authorized by issuing magistrate and were valid
Handwritten alterations on the search warrant to match the same subjects as the affidavit were authorized by the issuing magistrate and were valid. And, even if this made it overbroad, it was still valid under the good faith exception. United … Continue reading
LA2: SI before arrest was still valid
Defendant was stopped for aggravated assault from allegedly waving a gun. The search incident of his bag for a gun was reasonable as a search incident even though it preceded the arrest. State v. Gipson, 2024 La. App. LEXIS 1382 … Continue reading
CA1 suggests SCOTUS review categorical rule for search incident of containers
On denial of rehearing, the First Circuit suggests that SCOTUS take review of a case to decide the scope of containers subject to search incident, comparing Robinson (crumpled cigarette pack) and Riley (cell phones). United States v. Perez, 2024 U.S. … Continue reading
NJ: Defense gets discovery of drug dog’s records
Defendant was entitled to discovery of the drug dog’s records to determine the dog’s reliability. State v. Morgan, 2024 N.J. Super. LEXIS 88 (Aug. 21, 2024). Suspicionless supervised release searches are reasonable when applied to child porn offenders. United States … Continue reading
MD: No fixed distance for SI; here, handcuffed def’s coat
Officers entered with an arrest warrant and found defendant in bed. He was handcuffed. Getting his clothing to dress him, a gun was found in a coat. This was valid as a search incident, despite his being handcuffed. Also, there … Continue reading
IL: Invited guest in home can refuse contact with police at door without violating law
As an invited guest into the home, defendant had a reasonable expectation of privacy and right to refuse contact with the police at the door without violating the law. People v. Jones, 2024 IL App (1st) 221555, 2024 Ill. App. … Continue reading
S.D.N.Y.: Cell phone SW was “bare bones” on connection to the crime; no PC, no GFE
In this racketeering case, defendant admitted for purposes of the motion to suppress he was in the gang and that people engaged in violent acts. The government never showed probable cause to believe his cell phone had evidence of a … Continue reading
E.D.Mo.: Protective sweep permissible even after def removed from premises
A protective sweep is for persons, and it is reasonable to conduct one after defendant was removed from the premises. United States v. Spann, 2024 U.S. Dist. LEXIS 105082 (E.D. Mo. Apr. 15, 2024),* adopted, 2024 U.S. Dist. LEXIS 104446 … Continue reading
Cal.1: GFE applied to probation search term
The good faith exception applied to defendant’s probation search. The officer checked and reasonably concluded that defendant was still on searchable probation at the time. People v. Pritchett, 2024 Cal. App. LEXIS 348 (1st Dist. May 8, 2024), certified for … Continue reading
MO: Search incident can happen at mobile booking center without going to jail
A search incident can occur even where defendant is at a mobile booking place without being transported to jail. State v. Boehmer, 2024 Mo. App. LEXIS 314 (May 14, 2024). Defendant’s concession in the trial court that the stop and … Continue reading
MN: No difference between the privacy interest in DNA abandoned at the scene of a crime and the specific genetic information within it
There’s no difference between the privacy interest in DNA abandoned at the scene of a crime and the specific genetic information within it. State v. Carbo, 2024 Minn. LEXIS 236 (May 8, 2024). [A creative argument, but one always doomed … Continue reading
D.Colo.: Four day delay in getting SW for seized car wasn’t unreasonable
The seizure of this car was with probable cause that a gun would be found in it. The four day delay in applying for a search warrant for the car was not unreasonable. As to standing, defendant transferred ownership of … Continue reading
M.D.Pa.: Def was neither shipper nor recipient of USPS parcel, so he had no standing in it
Defendant was neither the shipper nor recipient of a USPS parcel with drugs in it, opened six weeks after it was unclaimed. He had no standing in it. United States v. Bell, 2024 U.S. Dist. LEXIS 78182 (M.D. Pa. Apr. … Continue reading
MI: Pants seized incident to arrest can be forensically tested without a SW
Defendant’s pants were seized incident to his arrest for murder because there was apparent blood on them. They were subject to being forensically tested without a separate warrant. Any reasonable expectation of privacy was lost with the seizure. People v. … Continue reading
CA8: Police placed a hidden camera across from def’s apt door and used information from it in showing PC for SW; there was PC without it
“Darron Mayo appeals the denial of his motion to suppress evidence obtained from a hidden camera police officers placed across from his apartment door. Officers used some of the evidence obtained from the camera in a probable cause affidavit supporting … Continue reading
S.D.Fla.: Emergency motion to quash SW denied; def can still file a motion to suppress
The target of a search filed an emergency motion to quash a search warrant for DNA to compare it to a firearm but without a showing there was DNA on the gun. The motion is denied, but the target can … Continue reading
WA: Brief detention on no bail FTA warrant wasn’t unreasonable where there was a PC determination within 48 hours
A no bail bench warrant for FTA wasn’t unreasonable because a probable cause determination was made within 48 hours. State v. Clare, 2024 Wash. App. LEXIS 462 (Mar. 12, 2024). Defendant’s search incident occurred before the arrest. To be lawful, … Continue reading
MO: Search incident to 96 hour mental health hold was reasonable
Defendant was picked up on a warrant for 96 hour mental commitment hold. The search incident to that was reasonable. “[T]he deputies’ search of Salcedo, incident to Salcedo being taken into custody pursuant to a warrant under section 632.305 for … Continue reading