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- E.D.Ky.: When court can’t tell the dog alerted, motion to suppress granted
- OH1: A malnourished child isn’t exigency for an infant
- E.D.Pa.: Mandamus doesn’t lie to unseal SW papers
- D.Me.: Looking around house when allegedly “freezing” it was an illegal search
- OR: Police listening to attorney-client jail calls because attorney calls not properly segregated leads to dismissal of some counts and setting aside guilty plea
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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 (26,730+ on WordPress as of 12/31/23) -
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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)
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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: Emergency / exigency
OH1: A malnourished child isn’t exigency for an infant
“The facts of this case are more akin to the situation in Fisher. While a report of a malnourished infant is certainly cause for concern, no one testified that that the infant would not survive without immediate medical intervention. Rather, … Continue reading
N.D.Ohio: Heroin and three guns in plain view was exigency for entry with child alone inside
Police knowing that defendant’s 12-year-old son was in the house alone with a significant quantity of heroin and three firearms all in plain view was exigency for entry. There also previous complaints to Family Services. United States v. Woodard, 2024 … Continue reading
OH2: Police responding to report of shot dog who heard an animal had exigency to enter the curtilage
“Based upon the evidence presented, we conclude the trial court did not err in denying the motion to suppress. The search of the home and surrounding premises was reasonable because the officers believed an injured animal was on the premises … Continue reading
NY3: SW for person doesn’t include body cavity search unless reason for such search was shown
“Even where a search warrant has been previously obtained, it is axiomatic that such ‘warrant exists and is required not simply to permit, but to circumscribe police intrusions’ …. Here, the search warrant that had been previously obtained authorized the … Continue reading
Iowa does not recognize state constitutional torts; here excessive force
Iowa does not recognize state constitutional torts; here excessive force. “Krystal Wagner, individually and as the administrator of the estate of her son, Shane Jensen, appeals the district court decision granting summary judgment to the State and Officer William Spece … Continue reading
thedrive.com: Police Are Tagging Fleeing Cars With GPS Darts to Avoid Dangerous Pursuits
thedrive.com: Police Are Tagging Fleeing Cars With GPS Darts to Avoid Dangerous Pursuits by Nico DeMattia (“The launchers are typically mounted to the front of cop cars and can fire darts at up to 30 mph.”). [Exigency, like an emergency … Continue reading
KS: No basis for a stop of car in a local park under “public safety exception”
A public safety stop is well recognized, deriving from Cady. “In this case, however, the facts do not support a valid safety stop. The deputy stated he was concerned because it was dark, it was late, the car was parked … Continue reading
OH5: Officer’s writing wrong statute number on ticket was a reasonable mistake of law
Defendant’s stop for a loud muffler was reasonable. His claim that it wasn’t loud on the bodycam is rejected. Another alleged offense cited the wrong statute. That’s a reasonable mistake of law. State v. Braucher, 2024-Ohio-811, 2024 Ohio App. LEXIS … Continue reading
UT: Emergency aid exception permitted entry for apparent homicide victim who was missing
The emergency aid exception permitted entry into this murder scene. The victim was the grandmother of a child who punctually picked the child up every day at school. When she didn’t show for hours, the school notified police. They went … Continue reading
OH3: 9-1-1 call about possible fire in def’s home justified FD entry; plain view resulted.
A 9-1-1 call about a fire in defendant’s home revealed by heavy black smoke from the chimney brought the fire and police departments who entered. The fire scene entry and the plain view were reasonable under Michigan v. Tyler. State … Continue reading
KS: Search of def’s purse when she was passed out likely from ODing was reasonable
The emergency aid exception justified the search of defendant’s purse. She was passed out on a convenience store bathroom floor with drug paraphernalia around her. It was reasonable to look in her purse to see what drug it might have … Continue reading
SD: Failure to put SW materials in record means trial court presumed correct
There were two search warrants for location data and defendant’s cell phone. Without the search warrant materials in the appellate record, there’s nothing to review and the trial court is assumed to be correct. State v. Horse, 2024 S.D. 4, … Continue reading
D.Minn.: Def’s PC suppression argument showed a trial defense, not an argment for suppression
Defendant’s objection to the R&R isn’t enough to overrule the USMJ’s finding there was probable cause. Defendant presents a trial defense, not a defense to probable cause. United States v. Cole, 2024 U.S. Dist. LEXIS 752 (D. Minn. Jan. 3, … Continue reading
OH2: Pinging cell phone of suspect shortly after homicide was exigent
Pinging defendant’s cell phone to try to find him after he had shot three people seven hours apart was with exigent circumstances. This is already settled in this state. State v. Smith, 2023-Ohio-4565, 2023 Ohio App. LEXIS 4389 (2d Dist. … Continue reading
IN: Patdown of man in medical distress before paramedics arrived was reasonable
Defendant’s patdown search when he was found lying in a parking lot in medical distress was objectively reasonable as an emergency search, if just for what was on him before paramedics arrived. Meth was found. Lack of a separate state … Continue reading
S.D.Ohio: Evidence in plain view may be seized during protective sweep
It was permissible for officers to seize firearms seen in plain view during this protective sweep. United States v. Riley, 2023 U.S. Dist. LEXIS 198798 (S.D. Ohio Nov. 6, 2023). “Given the totality of the circumstances and the numerous distinctions … Continue reading
M.D.Pa.: Police continually banging on def’s door to come out was seizure; no exigency applies; suppressed
Defendant fled from the police in his car in a highspeed chase. They went to his house and came on to defendant’s curtilage, his porch, and shined flashlights through the windows. This was a search on a constitutionally protected area. … Continue reading