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ABA Journal Web 100, Best Law Blogs (2017); ABA Journal Blawg 100 (2015-16) (discontinued 2018)
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© 2003-22,
online since Feb. 24, 2003 Approx. 350,000 visits (non-robot) since 2012 Approx. 40,000 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
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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"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!”
"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: Abandonment
MN: “Deer-in-the-headlights” look is a factor in RS
“But statements about a deer-in-the-headlights facial expression are commonplace in caselaw assessing whether a police officer has articulable, reasonable suspicion to justify a stop under the Fourth Amendment. There are over a dozen federal appellate decisions, including an opinion from … Continue reading
AL: When def was being taken to ER for chest pains, looking in pocket of jacket he wanted to take and a pill bottle inside was reasonable
Complaining of chest pains, defendant called 911. Attached to his address was a “safety alert” that police should show up for the safety of EMTs and firemen. As he was being transported to the hospital, he asked for his coat … Continue reading
W.D.N.C.: Def did not abandon backpack by hiding it nearby in bushes; he retained control
Defendant was at a McDonald’s with friends outside a car. When he saw the police, he put his backpack in the bushes to hide it while remaining nearby. He also went back to it to push it deeper into the … Continue reading
E.D.Ky.: Guns found during drug seizable as instrumentality of crime
In a drug search warrant, firearms found during the search are seizable as an instrumentality of a drug crime. United States v. Wilkins, 2022 U.S. Dist. LEXIS 200342 (E.D. Ky. Oct. 19, 2022). Defendant’s running from his car during a … Continue reading
D.Neb.: Affidavits for SWs are judged by what they contain, not what they lack
Affidavits for search warrants are judged by what they contain, not what they lack. United States v. Cass, 2022 U.S. Dist. LEXIS 195502 (D. Neb. Sep. 30, 2022), adopted, 2022 U.S. Dist. LEXIS 197043 (D.Neb. Oct. 26, 2022). It was … Continue reading
IA: Breaking cell phone in half and throwing it out window of moving car shows abandonment
Removing a cell phone’s battery, breaking the phone in half, and throwing it out the window of a moving car is indicative of abandonment. State v. Hurdel, 2022 Iowa App. LEXIS 784 (Oct. 19, 2022). “While this [KC ordinance] provision … Continue reading
FL1: Illegal patdown led to flight and lawful abandonment
Defendant was lawfully stopped, but his patdown was unreasonable. Then he fled on foot. That was abandonment, despite the illegal search. Atwood v. State, 2022 Fla. App. LEXIS 6855 (Fla. 1st DCA Oct. 12, 2022):
CA4: Bank robbery def abandoned the getaway car and his cell phone in it
“[T]he district court did not clearly err by finding that Pridgen abandoned the getaway vehicle and his cell phone, and, thus, the court did not err by finding that he lacked a reasonable expectation of privacy in those items when … Continue reading
CA1: Road rage incident day before justified search incident of car for weapon involved
Defendant was driving a white Corvette and he allegedly was involved in a road rage incident with occupants of a landscaping truck where he flashed a gun. An APB was put out for him, and he was stopped the next … Continue reading
DC: Tracking def off his WMATA fair card was like Knotts and reasonable
Police use of information off of defendant’s WMATA fare card first to find him to arrest him for a robbery on a train and then to place him on a train at the time of the robbery was reasonable. This … Continue reading
MN: When prosecution shows private search doctrine applies, defense has burden to show government action
When a defendant moves to suppress the evidence obtained from a warrantless search and the State proves that the private search doctrine applies, the burden to show that the private party was acting on behalf of the government falls on … Continue reading
W.D.Ky.: Presence of a passenger doesn’t alter analysis of abandonment of a vehicle
Defendant’s flight from an automobile is a waiver of his reasonable expectation of privacy. The fact a passenger was left behind doesn’t make it not abandonment as to him. United States v. Howard, 2022 U.S. Dist. LEXIS 140670 (W.D. Ky. … Continue reading
IA: Smell of MJ smoke 6 days earlier wasn’t stale here
“[W]e conclude that although this was an isolated event and the evidence sought was easily removable, the passage of six days was not significant enough to render the warrant stale.” State v. Euchner, 2022 Iowa App. LEXIS 590 (Aug. 3, … Continue reading
CA8: Inventory was reasonable despite officer expecting to find drugs
There was reasonable suspicion for defendants’ stop. The subsequent inventory was facially valid because it followed departmental policy. “That Detective Parks happened upon contraband in the course of this search does not transform an otherwise valid inventory search into a … Continue reading
D.Neb.: Being with known gang members was RS here
Association with known gang members was reasonable suspicion when defendant was with them. “True, the task force did not have information that Defendant himself was affiliated with a gang or otherwise had a criminal history involving violence. But, given his … Continue reading
M.D.Ga.: Dropping cell phone in flight from wrecked car is abandonment
A series of alleged crimes and other actions of the defendant was probable cause to search defendant’s phone found in his car. [There is no nexus to the crimes mentioned in the opinion, so I submit it’s wrong on this … Continue reading
CA7: Despite govt’s not raising abandonment, the court finds it anyway
The government conceded no abandonment and sought other exceptions to the warrant requirement. The court of appeals finds abandonment anyway because the record is clear. In addition, an allegation of a Franks violation fails without alleging that probable cause does … Continue reading
S.D.Ohio: Attempted search incident well after arrest when duffle bag was away from def was not “incident to arrest”; govt overspinned the facts
The officer lacked exigency for a warrantless entry to arrest. Defendant put his duffle bag outside a second story window on the roof to conceal it. It was not abandoned because the public didn’t have access to it. All he … Continue reading
TX4: No REP in totaled car at the wrecker yard
Defendant totaled his car in an accident. The black box evidence was sought by warrant, but the court holds that defendant effectively abandoned the car to the wrecking yard. Vitela v. State, 2022 Tex. App. LEXIS 2759 (Tex. App. – … Continue reading
W.D.Tex.: Def had REP in bag in car but no standing in rest of search of car
While defendant had no reasonable expectation of privacy in the car he was in, he retained a reasonable expectation of privacy in his bag in the car. United States v. Grice, 2022 U.S. Dist. LEXIS 72586 (W.D.Tex. Apr. 20, 2022). … Continue reading
