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- AR: RS def rented a hotel room was sufficient for search waiver; PC not required
- LA5: No standing to challenge search of shooting victim’s cell phone in def’s possession
- N.D.Okla.: Cell phones possessed by tribal police not subject to return under Rule 41(g)
- E.D.Ark.: Landlord and tenant refused rental property inspection and SW was validly issued and protected privacy interests
- D.D.C.: Judge shopping after denial of SW inappropriate; could have appealed to DJ
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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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--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: Apparent authority
NY4: Consent form filled out by police wasn’t proof of control of the premises; facts otherwise too vague
Defendant’s consent form was written by the police with boilerplate language, and the consent form is not sufficient evidence of control of the place searched. For all the proof shows, he was just somewhat familiar with the place and there … Continue reading
A.F.Ct.Crim.App.: Seizing cell phone before search authorization was granted was inevitable discovery
Based on a female airman’s complaint, AFOSI developed information that defendant had sex with her when she was too intoxicated to consent. She believed that he had pictures on his cell phone. OSI was seeking a search authorization for his … Continue reading
N.D.Iowa: Def’s GF who shared home who called police on him had apparent authority to consent
Defendant disavowed control over a bedroom in the single family home he lived in, and he had standing in the house as a whole and thus standing to challenge seizure of the gun found in that bedroom. The police here … Continue reading
D.N.M.: Def’s sister had keys to his storage units, and inquiry by the police led them to reasonably believe she had apparent authority
Defendant’s sister still had apparent authority to consent to search of his storage unit even though she didn’t know the access codes and she’d never been there. After inquiry by the police, it was reasonable for them to believe that … Continue reading
CA11: Police get QI for entry on a civil assist to recover property from former lover’s house
Police officers had qualified immunity for entry into plaintiff’s home with his estranged lover who came back with the police to assist to recover her belongings. Plaintiff’s guns were seized because he was under a domestic abuse injunction to not … Continue reading
FL1: Passenger’s detention may be extended because of RS as to driver
A passenger is stopped with the vehicle he or she was in. The length of that stop depends upon what happens with the driver and passenger, and it can be extended lawfully as to the passenger because of reasonable suspicion … Continue reading
TN: The host had common authority over the guest’s part of the premises; he was only there every other night
Defendant had been staying every other night with his brother who stayed in the property leased by Ms. Bryant. She had common authority over that room and went in it all the time. The trial court did not err in … Continue reading
E.D.Mich.: Def provided a cell phone to a minor he was trafficking for sex, and he had no REP in it even though he paid for it
Defendant was accused of sex trafficking a minor and provided her a cell phone. She had apparent authority to consent to search of the phone, and it was voluntarily given. United States v. Gardner, 2016 U.S. Dist. LEXIS 128480 (E.D.Mich. … Continue reading
CA7: Family computer that everybody knew password to gives common authority to all
The computer in the house belonged to defendant but it was a family computer and everybody knew the password. That being the case, any one of them had common authority over the computer to consent to its search. The fact … Continue reading
NJ: Joint occupancy by adults with separate bedrooms doesn’t give apparent authority over each other’s rooms
Because of the heightened privacy protection in the home, it was unreasonable for the officer here to conclude that one adult resident of a home could consent to a search of the room of another adult resident. “Third parties derive … Continue reading
CA9: Dist.Ct. erred in finding apparent authority over a briefcase that the consenter had no interest in when owner was objecting
The district court erred in granting summary judgment to defendants on a third party consent issue. There was no reason to believe that the person they sought consent from had an equal or superior control over the briefcase at issue, … Continue reading
ND: Landlord searched and seized backpack; police didn’t exceed landlord’s private search
A landlord told a defendant tenant to stop smoking marijuana in this apartment building, but defendant didn’t. The landlord went to the apartment which was unoccupied at the moment, entered, and looked at defendant’s backpack finding marijuana. He took it … Continue reading
TN: CI’s tale def was coming to apartment complex to do a drug deal was corroborated by him showing up and apparently doing a drug deal
The CI’s information defendant would be delivering crack cocaine to a specific apartment complex and an officer’s personal observations of defendant arriving there and engaging in what appeared to be a drug deal were sufficient to create reasonable suspicion to … Continue reading
IN: Houseguest answering knock at door lacks apparent authority to consent to entry
“This case involves whether Bryant Beatty had apparent authority to consent to police entry into Defendant, Timmie Bradley’s, home. Specifically, does a houseguest, who happens to answer the door to a home shortly after he knocked to gain entry himself, … Continue reading
IA: School officials had RS to search football player’s equipment bag on hearing metal clunk
Defendant was a high school football player injured during a game, and he went to the hospital. He was expressly concerned about the contents of his school-issued equipment bag to the point that school officials nearly had reasonable suspicion. When … Continue reading
CA6: Absent renter of motel room could consent to search after def arrested and removed
Defendant was wanted for being a serial robber in Chattanooga, and the FBI located him at a motel. They attempted a ruse to get him out of the room, but he didn’t fall for it. They used a master key … Continue reading