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- D.N.M.: DEA’s failure to make a detailed inventory in violation of policy doesn’t require exclusion of evidence
- WaPo: These cities bar facial recognition tech. Police still found ways to access it.
- C.D.Cal.: SW materials in case with weighty public interest ordered unsealed
- DC: Accepting a law license is consent to trust account subpoenas
- AR: RS def rented a hotel room was sufficient for search waiver; PC not required
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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)
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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: Inventory
N.D.Iowa: There is a REP in a wheelchair as an “effect”
Defendant had a reasonable expectation of privacy in his wheelchair where he’d hidden a gun. The automobile exception doesn’t apply to wheelchairs, and neither does Chadwick on the locked footlocker. The gun was seen by Walmart employees who called the … Continue reading
FL2: State’s failure to prove policy for inventory was failure of proof on warrantless search
Inventory is an exception to the warrant requirement, so the state carries the burden of proof. Here, the state failed to prove the policy, a General Order, that permitted the inventory to show that it was not a subterfuge for … Continue reading
FL5: Police report’s stating search was search incident isn’t binding at the suppression hearing
The officer’s noting the search of defendant’s vehicle was incident to arrest was incorrect and not binding at the suppression hearing. It was valid as an inventory. State v. Koontz, 2021 Fla. App. LEXIS 9019 (Fla. 5th DCA June 18, … Continue reading
NY3: No REP in pretrial detainees’ jail calls
There was no reasonable expectation of privacy in jail telephone calls for pretrial detainees because the inmates were warned. “To the extent that defendant argues that the admission of the phone calls violated his rights because he was being held … Continue reading
CA4: Trash out for collection at the curb is not on the curtilage
Trash out for collection at the curb is not on the curtilage. United States v. Holmes, 2021 U.S. App. LEXIS 16418 (4th Cir. June 2, 2021). The affidavit for a tracking warrant was misleading in one respect, but it wasn’t … Continue reading
CA8: Visitor’s property could be searched under warrant for host’s place on RS they were involved in drugs, too
Defendant was a visitor at a friend’s house when the house was searched under a warrant for drugs. She was on the couch with a meth pipe next to her, so it was reasonable to search her lockbox under the … Continue reading
CA10: Towing def’s car rather than leaving where it was wasn’t shown to be justified
Defendant’s car on his arrest would have been left on a motel parking lot, and the government didn’t show that this was a reasonable choice. Impoundment was thus unnecessary for community caretaking, and the denial of the motion to suppress … Continue reading
IA: Officer’s complying with 4A is not an element of the underlying crime for the jury
The officer’s complying with the Fourth Amendment in the stop and arrest is not an element of defendant’s crime [or any crime]. State v. Chivalan, 2021 Iowa App. LEXIS 381 (Apr. 28, 2021) [one can, in some cases, get an … Continue reading
D.Vt.: Apt building parking lot not curtilage; def’s girlfriend was private searcher
Defendant’s vehicle was in an apartment building parking lot, and that’s not curtilage. There was also probable cause to search it and it was mobile. Defendant’s cell phone was privately seized from his vehicle and turned over to police by … Continue reading
CA11: Tasing someone ignoring three commands to get on the ground was reasonable for QI purposes
“Measuring the facts of this case against the above factors, Deputy Ward acted reasonably when he used force against Duncan after she did not obey his orders to get on the ground. Even accepting as true that Duncan did not … Continue reading
D.S.D.: Suppression or dismissal aren’t remedies for violation of Right to Financial Privacy Act
Grand jury subpoenas are a proper method of obtaining bank records under the Right to Financial Privacy Act enacted after Miller. Also, suppression and dismissal aren’t remedies under the Act. United States v. Lundahl, 2021 U.S. Dist. LEXIS 52211 (D.S.D. … Continue reading
MI: Inventory policy doesn’t have to be written if it’s standardized
A written search inventory policy isn’t constitutionally required. “We hold that, in order to establish that an inventory search is reasonable, the prosecution must establish that an inventory-search policy existed, all police officers were required to follow the policy, the … Continue reading
CA7: Showing up for a controlled buy justifies automobile exception search
A prior controlled buy with defendant showing up for another one justifies a vehicle search under the automobile exception. United States v. Smith, 2021 U.S. App. LEXIS 6166 (7th Cir. Mar. 3, 2021). The trial court credited the officer’s testimony … Continue reading
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):*
CO: Impoundment of car legally parked in residential neighborhood unreasonable; no community caretaking need
Defendant was arrested, and his vehicle, lawfully parked in a residential neighborhood, was unreasonably impounded and towed. There was no community caretaking function need. People v. Thomas, 2021 COA 23, 2021 Colo. App. LEXIS 268 (Feb. 25, 2021). Syllabus by … Continue reading
CA1: Dist.Ct. erred in suppressing inventory which followed SOP
Defendant was stopped for a lane violation, and it turned out he had no DL. He wasn’t arrested but the vehicle was impounded and searched incident to that, even though defendant would likely go with the tow truck driver to … Continue reading
N.D.Ohio: Impoundment under SOP was reasonable even though owner was present
Impoundment of defendant’s vehicle was reasonable and under standardized procedure, even though he was present. “I conclude Directive 406.3/2.3.4 was a reasonable standardized procedure. The officers’ decision to enforce Directive 406.2/2.3.4 and impound the vehicle, even though the lawful owner … Continue reading
MA: State bears the burden of showing there is no investigatory purpose for an inventory
The state of Massachusetts bears the burden of showing there is no investigatory purpose for an inventory. Commonwealth v. Lek, 2021 Mass. App. LEXIS 19 (Feb. 11, 2021):
E.D.Cal.: Officer wasn’t required to wait around for alternative means to tow vehicle before impoundment
“It is true that defendant made multiple requests to contact AAA to tow his truck, and he eventually suggested arranging for his father or friends, who were purportedly nearby, to move his truck to avoid impoundment. There was no telling … Continue reading