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- FL3: Cell phone dump in civil case denied; no showing of need
- E.D.Va.: Must plead prejudice when delay of a cell phone SW is alleged
- CA: Avoiding the police in a high crime area isn’t RS
- CA7: Jail officials holding plaintiff under a valid court order aren’t liable for not releasing him sooner after a sentencing error
- Volokh: Do Fourth Amendment Protections Change When Property Is Moved?
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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: Nexus
M.D.Pa.: CSLI tracking by state court order was reasonable under federal law despite alleged state law violation
Defendant’s cell phone location information search was reasonable and constitutional under federal law despite an alleged violation of state law. United States v. Coles, 2021 U.S. Dist. LEXIS 143548 (M.D.Pa. Aug. 2, 2021). There was probable cause for the search … Continue reading
CA2: Parole search valid under “special needs” even without RS
The parole search here lacked reasonable suspicion, but it was justified by the special needs exception to the warrant requirement. “Because a search undertaken by a parole officer of a parolee to detect parole violations is ‘reasonably related to the … Continue reading
OR: Venn diagram of PC to a place or thing (nexus)
State v. Turay, 313 Ore. App. 45, 53, 2021 Ore. App. LEXIS 941 (July 8, 2021):
WA: PC and nexus shown for CSLI warrant before Carpenter
Defendant was a suspect in a diamond theft. Police obtained a search warrant for his cell phone location records and that placed him near the burglary at the time it happened, and there was probable cause for it. The search … Continue reading
AF: Search of house in murder case was reasonable and with PC in attempting to show the relationship between deceased and def
Defendant is an airman convicted at a court martial of premeditated murder of his girlfriend and unborn child. The search of his house was proper because it was reasonable to believe that evidence of their relationship would be found there … Continue reading
CA2: No 4A extraterritorial jurisdiction over Switzerland enforcing its own law against Americans in Switzerland
An extraterritorial seizure of art work and antiquities in Switzerland of American citizens doesn’t involve the Fourth Amendment. International law has not adopted the Fourth Amendment’s probable cause standard. There is no justification shown for applying the Fourth Amendment to … Continue reading
CA10: Nexus for CP can logically move when def does
Police had probable cause defendant uploaded child pornography from home. Then he moved. It was reasonable to assume his computers went with him to the new address, so nexus was sufficiently shown for probable cause there. United States v. Kilgore, … Continue reading
S.D.Ohio: PC to arrest doesn’t equal PC to search the suspect’s house, but where do people normally hide things?
Explaining the competing interests in nexus is United States v. Reliford, 2021 U.S. Dist. LEXIS 93053 (S.D. Ohio May 17, 2021). Probable cause to arrest doesn’t equal probable cause to search the suspect’s house, but where do people normally hide … Continue reading
CA11: Adding in the omitted information still showed PC
“Detective Tuck’s affidavit omitted some information favorable to Martelli, but even if we assume that those omissions were intentional or reckless, the claim still fails. It fails because, even including all the omitted information, a reasonable officer in Tuck’s position … Continue reading
LA5: Use of a flashlight on a car is still a plain view
Using a flashlight to look in a car was still a valid plain view. State v. Williams, 2021 La. App. LEXIS 767 (La. App. 5 Cir. May 13, 2021). Where the alleged OWI offender was incapacitated, Mitchell applies to his … Continue reading
E.D.N.C.: Window tint violations always require a stop
Window tint violations require a stop to verify. “But the Supreme Court has said that ‘[t]o be reasonable is not to be perfect, and so the Fourth Amendment allows for some mistakes on the part of government officials, giving them … Continue reading
CA2: Failure to promptly return property lawfully seized isn’t separate 4A claim
Where firearms were lawfully seized, there isn’t a separate Fourth Amendment claim for failure to promptly return them. Bello v. Rockland Cty., 2021 U.S. App. LEXIS 13281 (2d Cir. May 5, 2021). Probable cause is required for administrative subpoenas under … Continue reading
CA6: What is sufficient probable cause for a CSLI or tracking warrant?
What is sufficient probable cause for a CSLI or tracking warrant? “After a lengthy investigation, the federal government uncovered substantial evidence that Dwayne Sheckles was a Louisville distributor for a large drug-trafficking ring. Sheckles pleaded guilty but reserved the right … Continue reading
CA8: Lack of nexus saved by GFE
Even without an adequate showing of nexus, search warrants have been sustained under the good faith exception. This is one of those cases where the inference is close enough. United States v. Mayweather, 2021 U.S. App. LEXIS 10208 (8th Cir. … Continue reading
W.D.Pa.: SW for drug proceeds properly included jewelry it could have been converted to
A search warrant for drug proceeds properly included jewelry that the officer, in his experience, believed drug traffickers converted cash to. United States v. Thomas, 2021 U.S. Dist. LEXIS 65553 (W.D. Pa. Apr. 5, 2021). The officer here saw a … Continue reading
CA6: When the question of nexus is close, GFE is the answer
When the question of nexus of probable cause of a crime to a defendant’s home is close, the good faith exception provides the answer. United States v. Reed, 2021 U.S. App. LEXIS 9526 (6th Cir. Apr. 1, 2021):
DE: Wiretap info in affidavit for SW showed nexus to cell phone
The affidavit showed probable cause for the search warrant, and nexus to his cell phone and the crime under investigation is shown in a wiretap. Anderson v. State, 2021 Del. LEXIS 121 (Mar. 30, 2021).* Defendant did not show a … Continue reading