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Recent Posts
- LA4: Merely having a concealed firearm isn’t RS for a frisk
- OR: Merely driving off the road wasn’t RS, but adding the driver’s demeanor at the time was
- OH6: Trial court’s failure to explain RS under Rodriguez required remand
- CA6: Asking def before a patdown during arrest what he had on him wasn’t barred by Miranda
- NY Queens: PC shown for SW blood drawn at hospital after car wreck
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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,
citations, and links -
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General (many free):
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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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Section 1983 Blog -
"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: Standing
S.D.Ga.: Geofence warrant based on 16 SWs showed PC and GFE
(1) Defendant lacks standing to challenge a geofence warrant to the cell phone accounts held by others. The affidavits for 16 warrants all showed probable cause. The possibility of a different standing for probable cause for novel surveillance is rejected. … Continue reading
D.Nev.: Ability to manage day-to-day operations doesn’t give standing over whole business space
(1) “Accordingly, although Defendant had the discretion to manage the day-to-day operation of LLB, the Court finds he did not actually manage the day-to-day operations of the business.” “In this context, ownership of premises alone does not automatically confer standing. … Continue reading
S.D.N.Y.: Employee has no standing in office common area
Under Mancusi v. Deforte, an employee has no standing in the open area of the office where he or she works, as opposed to one’s private office. United States v. Johnson, 2023 U.S. Dist. LEXIS 154559 (S.D.N.Y. Aug. 31, 2023). … Continue reading
OH1: Automobile exception does not apply to a purse removed from vehicle before PC developed
“In this appeal, we are asked to consider the narrow application of the automobile exception to the Fourth Amendment’s warrant requirement: whether officers may, in the course of a car search, search a container held roughly 25 feet away from … Continue reading
CA3: Def’s possession of rental car with renter’s permission gave standing
“Christopher Montalvo-Flores moved to suppress evidence the Government obtained in its search of his girlfriend’s rental car. The District Court denied his motion, holding that he failed to show he had a reasonable expectation of privacy in that vehicle. We … Continue reading
CA6: Absconding parolee on electronic monitoring had no standing against using OnStar to find him
“Although the Supreme Court has expressly declined to hold that a parolee categorically has no expectation of privacy in any context, … Lenhart, as a parolee who was subject to electronic monitoring as a condition of his parole, had no … Continue reading
CA6: Standing required in a § 1983 case
Plaintiff didn’t have standing to raise someone else’s rights in a § 1983 case. Appeal dismissed. Jordan v. City of Toledo, 2023 U.S. App. LEXIS 22063 (6th Cir. Aug. 21, 2023). Drug officers’ executing search warrants and stealing property was … Continue reading
CA7: PC can exist even if officer doesn’t believe “putative victim”
“But Garcia has a high hurdle to combat a probable-cause determination because G.C., the putative victim, identified him as responsible. … An officer need not even believe that a witness is reliable to determine that her statement supports probable cause … Continue reading
CA6: The fact a prior car search came up empty isn’t material for Franks
“Daniel has not demonstrated that the omission of the initial car search’s fruitlessness from the affidavit amounted to a deliberate falsehood or showed reckless disregard for the truth.” United States v. Daniel, 2023 U.S. App. LEXIS 21751 (6th Cir. Aug. … Continue reading
ID: Pleading only state constitution waived 4A
Defendant’s pleading only the state constitution waived the Fourth Amendment claim. State v. Bell, 2023 Ida. LEXIS 95 (Aug. 15, 2023). Defendant complained trial counsel was ineffective for not challenging a search of house that was allegedly burglarized and defendant’s … Continue reading
D.Mass.: No standing shown for anticipatory warrant
Defendant showed no standing to contest this anticipatory warrant for mailed drugs. United States v. Fontanez, 2023 U.S. Dist. LEXIS 141256 (D.Mass. Aug. 11, 2023).* Plaintiff’s pro se case against the police department that searched and arrested was four years … Continue reading
E.D.Pa.: Cell phone passcode given by consent, but Cellebrite can open phone anyway
Defendant consented to giving up the passcode to his phone. The court notes in n.2 that Cellebrite can crack the passcodes. United States v. Frey, 2023 U.S. Dist. LEXIS 141180 n.2 (E.D. Pa. Aug. 14, 2023). Defendant was reasonably denied … Continue reading
CA11: Outsider to case has no standing in Mar-a-Lago SW litigation to challenge PC
Plaintiff, a citizen who is essentially a person on the street with no particular interest in the case, has no ability to intervene in the Mar-a-Lago search warrant case to argue lack of probable cause, something conceded by the parties. … Continue reading
D.D.C.: Sentence enhanced for destruction of subpoenaed emails found in later search
The government subpoenaed emails from defendant. Suspecting that some were deleted, a search warrant was issued for his account, and the missing emails were found. Thus, the sentence was enhanced for destruction of evidence under U.S.S.G. § 3C1.1. United States … Continue reading
D.C.Cir.: ‘“Let me see your waistband’–amounted to a show of authority.”
“Here, Officer Tejada initially approached Gamble and asked him a question: ‘Ain’t got no gun on you, man?’” ‘“Let me see your waistband’–amounted to a show of authority.” United States v. Gamble, 2023 U.S. App. LEXIS 19695 (D.C.Cir. Aug. 1, … Continue reading
E.D.Mich.: A place probationer spent some nights wasn’t his official residence for probation search
Probation staff and the government failed to prove that the place searched under a probation search condition was defendant’s place. He was permitted to stay with relatives on occasion but those were not his residences. The search is suppressed. United … Continue reading
CA11: Lawyers were arrested for interfering with cell phone search
In a CPS-type case, there was a search warrant for two cell phones with alleged child pornography on them, and officers were going to execute them outside a hearing in the courthouse. Watching on surveillance video, officers saw the phones’ … Continue reading
NY Queens: Conflict of laws: Federal SW led to state court prosecution, and it is reviewed under state law
The warrant was issued by a U.S. Magistrate Judge, but it is reviewed under New York law which retained Aguilar/Spinelli, and it meets the test. People v. Mercado, 2023 NY Slip Op 23195, 2023 NYLJ LEXIS 1655, 2023 N.Y. Misc. … Continue reading
NJ: Search incident at hospital 90 minutes after arrest was reasonable
Defendant was arrested for first-degree aggravated manslaughter as a result of an accident after he injected himself with fentanyl-laced heroin. He was under arrest at the scene, but he wasn’t actually searched until he was in the hospital. The search … Continue reading