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Recent Posts
- Bloomberg Law: Texas’ 100-Plus Year Investigatory Tool Ruled Unconstitutional
- D.Minn.: State law permits POs to conduct “unannounced visits” and that includes unannounced warrantless searches
- E.D.Va.: Three images from ALPR in 30 days wasn’t enough for a Carpenter violation
- CA5: The 4A doesn’t limit the number of officers that show up for an administrative search
- D.Idaho: The exclusionary rule does not apply in pretrial release revocations
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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 (27,400+ on WordPress as of 7/23/24) -
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Fourth Amendment cases,
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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: Arrest or entry on arrest
IA: A brief detention at the scene is not “arrest” for speedy trial purposes
“Arrest” for speedy trial purposes doesn’t include a brief detention at the scene before the actual arrest. State v. Harris, 2024 Iowa Sup. LEXIS 79 (Oct. 4, 2024). Defendant satisfied his first Franks burden of a substantial preliminary showing of … Continue reading
OH1: “Suspicious vehicle” report didn’t justify stop when it drove off as officers were looking at it
Officers had a report of a suspicious vehicle on an apartment complex parking lot. They stopped and shined lights on it and looked. After about a minute, the vehicle drove off. The stop was without reasonable suspicion and was a … Continue reading
W.D.Pa.: A state court dispute over return of seized property held by feds heading toward contempt was removable to federal court
Defendant’s property was seized under a state search warrant. Defendant sought return in state court, but it had been transferred to federal officers. They refused return. Contempt was sought against the federal officers in state court and this was removable … Continue reading
D.P.R.: REP in workplace isn’t automatic; here there wasn’t any in a postal sorting area
A reasonable expectation of privacy in one’s workspace is not automatic. Here it was a postal worker in a sorting area, and that wasn’t private. United States v. Alarcón-Rodríguez, 2024 U.S. Dist. LEXIS 175916 (D.P.R. Sep. 25, 2024).* “Because a … Continue reading
D.Minn.: A cell phone tracking order was permitted where there was an arrest warrant for defendant
“Despite a dearth of binding precedent, this Court is satisfied that the existence of an active arrest warrant provides a sufficient basis for a magistrate judge to find probable cause to issue a tracking warrant allowing law enforcement to monitor … Continue reading
M.D.Pa.: No constitutional requirement to get arrest warrant for misdemeanor committed in officer’s presence
There is no constitutional requirement for an officer to get an arrest warrant to arrest based on a misdemeanor committed in his presence. The common law says the officer can. United States v. Alvarez, 2024 U.S. Dist. LEXIS 172609 (M.D. … Continue reading
GA: Swabbing handcuffed arrestee’s hands for DNA valid as SI
Swabbing defendant’s hands for DNA while he was handcuffed in an interrogation room was valid as search incident. The DNA was easily destroyed. (Thus exigency too.) Gonzalez v. State, 2024 Ga. LEXIS 203 (Sep. 17, 2024). An warrant still in … Continue reading
N.D.Ind.: Cell phones are “tools of the trade” of drug dealing, so nexus is minimal [actually, practically non-existent]
While cell phones are “tools of the trade” of drug dealing, they usually can be swept up in a search warrant for the premises. While that works in drug cases, there should be caution in other types of cases. United … Continue reading
D.Conn.: LEO accessing public social media accounts doesn’t implicate 4A
A prison security official’s accessing a potential visitor’s social media accounts to determine whether the visitor is some kind of security threat doesn’t violate the Fourth Amendment. Lawrence v. Zack, 2024 U.S. Dist. LEXIS 161377 (D. Conn. Sep. 9, 2024). … Continue reading
W.D.Pa.: Losing suppression motion then pleading nolo was collateral estoppel in later civil case
Plaintiff raised a search issue in her underlying criminal case and lost. Later, she pled nolo and thus could not appeal. That’s final enough for collateral estoppel to apply in her § 1983 case. Harr v. Washington Area Humane Soc’y, … Continue reading
CA8: 4A requires no particular type of drug dog alert
“Collier also questions how Raptor alerted, suggesting that its alert was insufficiently ‘profound.’ … Our ‘probable cause inquiry is always fact specific.’ … Every dog is unique, and a dog that smells illicit drugs is not required to communicate with … Continue reading
CA8: No individualized PC to arrest all protestors in a group
Probable cause as to a group of people involved in a protest sweeps too broadly. Ybarra requires probable cause as to individuals. It was not reasonable to believe everyone in this particular group was violating the law. They couldn’t be … Continue reading
S.D.Ind.: Handwritten alterations to SW were authorized by issuing magistrate and were valid
Handwritten alterations on the search warrant to match the same subjects as the affidavit were authorized by the issuing magistrate and were valid. And, even if this made it overbroad, it was still valid under the good faith exception. United … Continue reading
TX7: Failure to follow inventory procedures at all required suppression
The inventory policy here wasn’t followed to remove valuables and let defendant keep them. Instead it appears to be a criminal evidentiary search and stopped when finding a gun and running the serial number and asking if defendant was a … Continue reading
CA6: Some reasonable property damage during an arrest is not subject to 5A takings clause
As long as the police were reasonable in their actions, some damages to an arrestee’s property is not subject to the Fifth Amendment’s takings clause. Slaybaugh v. Rutherford Cty., 2024 U.S. App. LEXIS 22277 (6th Cir. Sep. 3, 2024):
MO: Break in chain from Good Samaritan Law entry occurred when def was searched for transport in police car
The Missouri Good Samaritan Law provides immunity from prosecution from evidence of crime found as a result of a medically-related entry. Here, however, defendant was searched before he was placed in a patrol car, and immunity wasn’t what the legislature … Continue reading
LA2: SI before arrest was still valid
Defendant was stopped for aggravated assault from allegedly waving a gun. The search incident of his bag for a gun was reasonable as a search incident even though it preceded the arrest. State v. Gipson, 2024 La. App. LEXIS 1382 … Continue reading
W.D.Wash.: Warrantless arrest in def’s doorway violated 4A
Defendant’s warrantless arrest in his doorway violated the Fourth Amendment. After objecting, defendant acceded to their demands when they pulled a Taser on him. The remedy of what to do with his statement will be addressed later. United States v. … Continue reading
FL3: Officers could enter def’s home to make his arrest with an arrest warrant
Defendant was convicted of resisting arrest without violence. The jury was properly instructed that the officers could enter his home on an arrest warrant. Martinez v. State, 2024 Fla. App. LEXIS 6538 (Fla. 3d DCA Aug. 21, 2024). Plaintiff’s malicious … Continue reading
MD: No claim for false arrest under an arrest warrant approved by a judge on PC
After being acquitted in a bench trial on interpretation of the statute involved, plaintiff sued for false arrest and malicious prosecution. The arrest warrant was issued on probable cause by a neutral and detached magistrate, and the officers had to … Continue reading