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ABA Journal Web 100, Best Law Blogs (2017); ABA Journal Blawg 100 (2015-16)
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© 2003-20,
online since Feb. 24, 2003
WebPage Visits: real non-robot hits since 2010; approx. about 30,000 posts since 2003~~~~~~~~~~~~~~~~~~~~~~~~~~
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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Briefs online (but no amicus briefs)
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General (many free):
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www.fd.org
Federal Law Enforcement Training Center Resources
FBI Domestic Investigations and Operations Guide (2008) (pdf)
DEA Agents Manual (2002) (download)
DOJ Computer Search Manual (2009) (pdf)
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
Privacy Foundation
Electronic Frontier Foundation
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“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"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: Emergency / exigency
CA9: Mid-trial change in testimony from SW affidavit may entitle def to Franks hearing, but here issue wasn’t timely raised
Without deciding whether to follow the Fourth Circuit (United States v. White, 850 F.3d 667, 673 (4th Cir. 2017)) holding that trial testimony differing from a search warrant affidavit entitles the defendant to a mid-trial Franks hearing, here the issue … Continue reading
NE: Search of passenger’s purse by consent for passenger compartment was based on reasonable belief it was passenger’s
The driver consented to a search of the car defendant was a passenger in. The passenger’s purse was reasonably believed to be the driver’s for consent purposes, even though it was on her side. When it was opened and her … Continue reading
KS: Looking in purse of unconscious driver was reasonable
The emergency aid exception applied: “Officer Brown searched Smith’s purse seeking Smith’s identity and any information that would explain the nature of Smith’s condition and the best means of treating it. When the officer made this decision, the paramedics were … Continue reading
D.Mont.: Warrantless taking of penile swabs from def in custody lacked exigency
Warrantless collection of penile swabs from defendant in custody lacked exigent circumstances and was suppressed. United States v. Birdsbill, 2020 U.S. Dist. LEXIS 196612 (D. Mont. Oct. 20, 2020):
CA1: Gunshot from within while waiting for SW justified entry and sweep
Police froze and surrounded defendant’s home while they sought a search warrant. While they were waiting, a gunshot came from within, so they entered in response. The government satisfied inevitable discovery even though this protective sweep ended up in the … Continue reading
SCOTUS cert. grant: Does hot pursuit apply to misdemeanant’s flight into own home?
Lange v. California, 20-18 (granted Oct. 19, 2020): Issue: Whether the pursuit of a person whom a police officer has probable cause to believe has committed a misdemeanor categorically qualifies as an exigent circumstance sufficient to allow the officer to … Continue reading
MA: Def’s arrest in car with others didn’t remove safety factor of search for firearm
Defendant’s arrest didn’t remove the safety factor because there were others in the vehicle who could access a potential weapon. Therefore, the search for the weapon was reasonable. Commonwealth v. Silvelo, 2020 Mass. LEXIS 647 (Oct. 14, 2020). Defendant filed … Continue reading
CA10: Def’s flight into house to avoid arrest justified police entry because of exigency and hot pursuit
Police initiated arresting defendant outside his home, and he fled into his house to avoid it. The warrantless entry into his home was justified by probable cause for the arrest and exigent circumstances of both destruction of evidence and hot … Continue reading
S.D.Tex.: Officers’ encounter with def two hours after a shooting wasn’t exigency for home entry
The government failed to prove any exigency for the entry into defendant’s house. He was encountered outside two hours after a shooting, and it was apparent nobody was in any need of assistance, including him. United States v. Curtis, 2020 … Continue reading
TX14: No justification for warrantless seizure of cell phone for fear of deleting its contents
Officers lacked any justification to believe that defendant was deleting or was going to delete evidence from his cell phone to justify a warrantless seizure of the phone in a robbery case. Igboji v. State, 2020 Tex. App. LEXIS 7647 … Continue reading
CA9: Neighbor’s 911 call about burglary justified police entry protective sweep
A 911 burglary call by defendant’s neighbor led to police coming to the house, and the police entered to look for suspects. This was a reasonable entry based on exigency. United States v. Booth, 2020 U.S. App. LEXIS 28377 (9th … Continue reading
CT: No justification for welfare check entry; and then they waited an hour to enter
The trial court erroneously held that there was an objective basis for finding probable cause to enter defendant’s apartment for a welfare check. There wasn’t. There had been an altercation in the laundry room. The fact his car was parked … Continue reading
CA6: Alleged false statement to get an arrest warrant overcame QI
Alleged false statement to get an arrest warrant overcame qualified immunity. Tlapanco v. Elges, 2020 U.S. App. LEXIS 25595 (6th Cir. Aug. 12, 2020). The state failed to show exigent circumstances excused obtaining a search warrant for defendant’s BAC. Commonwealth … Continue reading
D.Me.: No exigent circumstances for BAC blood sample without SW
A Park Ranger in Acadia National Park in Maine followed Maine law to get a blood sample without a search warrant. There were no exigent circumstances, and the blood sample is suppressed. United States v. Manubolu, 2020 U.S. Dist. LEXIS … Continue reading
MA: Info there might be armed men holding a hostage inside justified entry
“In this case, the police had information that there might be armed men holding a woman in an apartment against her will. In the circumstances presented here, so long as the officers had ‘an objectively reasonable basis to believe’ that … Continue reading
CA9: Police following a blood trail onto curtilage after recent crime was exigency
The district court concluded defendant had no standing to challenge a tribal police search of the curtilage of his grandmother’s house where he was an overnight guest. Assuming, without deciding, he has standing, there was clear and obvious exigency for … Continue reading
