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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© 2003-21,
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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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
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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“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
D.N.M.: While the govt didn’t prove exigency, inventory exception applied
While there was some exigency, the government failed on its burden of proving exigency necessitated its action. Instead, the court finds inevitable discovery. United States v. O’Neil, 2021 U.S. Dist. LEXIS 35424 (D. N.M. Feb. 25, 2021):*
WY: No hot pursuit into home for traffic violation that wasn’t “hot”
Hot pursuit for a traffic violation did not permit an entry into the home. Here, the pursuit just wasn’t “hot” or exigent because the officer called for backup. Fuller v. State, 2021 WY 36, 2021 Wyo. LEXIS 41 (Feb. 24, … Continue reading
GA: Contraband in plain view on def’s property didn’t justify warrantless entry to seize it
Officers’ entry onto abandoned property next door to defendant’s place to get a better view of his place was reasonable. He had no reasonable expectation of privacy there or in the view from there. However, they saw contraband in plain … Continue reading
CA8: QI denied for entering the wrong house at 3 am looking for taxi fare skipper
Police looking for a taxicab fare skipper at 3 am found a door to a garage ajar and entered plaintiffs’ home with guns drawn. They encountered plaintiffs outside their bedroom but never found the fare skipper. Plaintiffs sued. The court … Continue reading
CA3: Petition to revoke has to be based on a 4A showing of PC on oath or affirmation, and this was
The petition to revoke was based on probable cause and oath or affirmation and complied with the Fourth Amendment. United States v. Petlock, 2021 U.S. App. LEXIS 3865 (3d Cir. Feb. 11, 2021). Police responded to a suicide in progress … Continue reading
FL1: Even with issuing magistrate having second thoughts and suppessing, SW was executed in good faith
A search warrant was issued for drugs and firearms, and the CI was a “disgruntled” ex-girlfriend. The issuing judge heard the motion to suppress and decided that her disgruntledness required corroboration, and, on second thought, she wouldn’t have issued the … Continue reading
IL: When exigency forms is determined on the totality
On the totality of circumstances, there was exigency for the police entry, despite their delay. All in all, the delay was reasonable as information was learned, and then it was time to act. People v. Kulpin, 2021 IL App (2d) … Continue reading
MD: 911 call led to plain view
911 was called by defendant’s mother about his possible cardiac arrest. When the officer arrived, defendant was alert and fine, and his drugs were in plain view. Their seizure was valid. Glanden v. State, 2021 Md. App. LEXIS 80 (Feb. … Continue reading
DE: Texting linked def’s cell phone to murder and was nexus for SW
“Second, the affidavits supported the Magistrate’s determination that there was a nexus between the murder and Defendant’s iPhone. The affidavits averred that Witness 2 texted Defendant throughout the day of the murder.” State v. Wilson, 2021 Del. Super. LEXIS 84 … Continue reading
KY: Smell of burning marijuana from a house alone is not exigency
The entry here could not be justified as a protective sweep because of a lack of reason to believe the person sought was there. It also can’t be justified by exigency because of the smell of burning marijuana alone. Nothing … Continue reading
PA to decide CPS power to enter without SW for “child in need of services”
PA grants review on the authority of Child Protective Services to enter without a warrant on a report of a “child in need of services” under (1) state constitution, and (2) Fourth Amendment. In interest of Y.W.-B., 2021 Pa. LEXIS … Continue reading
CA8: Remodeler found video voyeur camera and conducted a private search then turned it over to police
A man remodeling defendant’s house found a USB port in the bathroom, and he gathered that the USB could be used to hook up a camera in the bathroom to record children visiting there. He took the device he found … Continue reading
OH5: Entry into cell phone tower at night which was being serviced was without exigent circumstances
A police officer came upon a cell phone tower at night where the door was open and a car was parked outside. He could hear music inside. He came in and asked what was going on and saw a bong. … Continue reading
OH5: 911 hang-up call is treated as presumptively an emergency until shown otherwise
In Ohio, a 911 hang-up call is treated as presumptively an emergency until shown otherwise. State v. Walter, 2020-Ohio-6772, 2020 Ohio App. LEXIS 4622 (5th Dist. Dec. 17, 2020). A police officer’s property was searched under a warrant. The warrant … Continue reading
SD: Impending surgery exigency for warrantless blood draw
Defendant’s impending surgery was an exigent circumstance for a warrantless blood draw. “We have held that imminent medical care that threatens to destroy BAC evidence through blood transfusions, intravenous fluids, or natural dissipation over time may create exigent circumstances. … … Continue reading
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
