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- E.D.Ky.: When court can’t tell the dog alerted, motion to suppress granted
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- D.Me.: Looking around house when allegedly “freezing” it was an illegal search
- OR: Police listening to attorney-client jail calls because attorney calls not properly segregated leads to dismissal of some counts and setting aside guilty plea
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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)
--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)
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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: Arrest or entry on arrest
W.D.Mo.: Wrong address in SW wasn’t fatal where right house was searched
The affidavit had the correct address but the warrant didn’t. The right house was searched, and the warrant was valid. United States v. Gallagher, 2024 U.S. Dist. LEXIS 73780 (W.D. Mo. Mar. 28, 2024). Defendant abandoned a gun, hoodie, and … Continue reading
LA4: Merely having a concealed firearm isn’t RS for a frisk
“The State asserts that the evidence should not be suppressed because the NOPD was entitled to conduct a La. C.Cr.P. art. 215.1, ‘Terry stop’ on Mr. Green, which would have revealed the firearm. See Terry v. Ohio, …. However, the … Continue reading
NY Queens: PC shown for SW blood drawn at hospital after car wreck
Probable cause was shown for the search warrant for defendant’s blood drawn at a hospital after a car wreck. To the extent there is also a Franks challenge, it fails. People v. Moreno, 2024 NY Slip Op 24116, 2024 NYLJ … Continue reading
WA: No immediate bail for DV arrest violates neither 4A nor due process
A no bail arrest for domestic violence until the first appearance violates neither the Fourth Amendment nor due process. State v. Clare, 2024 Wash. App. LEXIS 462 (Mar. 12, 2024). CoA denied. Petitioner doesn’t show that his state Fourth Amendment … Continue reading
S.D.Fla.: SW application redacted for discovery for now
For the time being, the search warrant application is redacted in discovery under Rule 6(e). “First, the Special Counsel opposes the disclosure of a search warrant application for Defendant De Oliveira’s Gmail account …. This includes the search warrant itself, … Continue reading
CA3: Not giving ID didn’t give PC to arrest after illegal stop
“The District Court nevertheless determined that there was no constitutional violation because the officers had the right to arrest the Appellants under New Jersey law for failing to provide identification. But that conclusion puts an alleged violation of state law … Continue reading
OH4: Off-duty police officer can make a traffic stop
An off-duty police officer has the authority to make a traffic stop. Defendant cites no law that says they can’t. In addition, he had probable to make the stop. State v. Netter, 2024-Ohio-1068, 2024 Ohio App. LEXIS 997 (4th Dist. … Continue reading
C.D.Cal.: Inquiry into actions of others besides the officers involved in search is a new Bivens claim and barred
“Second, the type of evidence necessary to prove Plaintiffs’ case differs from Bivens. Bivens required only an inquiry into the actions of arresting officers. Meanwhile, Plaintiffs challenge the propriety of Zellhart’s warrant application and special search procedures, requiring the Court … Continue reading
WA: Brief detention on no bail FTA warrant wasn’t unreasonable where there was a PC determination within 48 hours
A no bail bench warrant for FTA wasn’t unreasonable because a probable cause determination was made within 48 hours. State v. Clare, 2024 Wash. App. LEXIS 462 (Mar. 12, 2024). Defendant’s search incident occurred before the arrest. To be lawful, … Continue reading
W.D.N.C.: Def agreed to electronic monitoring as a condition of release
Defendant agreed to electronic monitoring as a condition of release, so it was admissible in evidence. United States v. Anthony, 2024 U.S. Dist. LEXIS 40422 (W.D.N.C. Mar. 6, 2024). Defendant’s improper lane change was seen in the rearview mirror, so … Continue reading
W.D.Pa.: Prisoners stated 4A claim for recording of attorney-client calls
Prison inmates stated a claim where their prison calls to their lawyers were recorded by the provider without their knowledge. “ICS’ contention that the recording here was proper because inmates have a lowered expectation of privacy is inapplicable. First, while … Continue reading
MN: Evans rejected under state constitution; arrest on quashed warrant invalid
“Because we recognize several purposes served by the exclusionary rule, including deterring unlawful government conduct generally, and we conclude that applying the exclusionary rule here serves these remedial goals, we decline to extend the good-faith exception to the exclusionary rule … Continue reading
TX5: lack of a prompt determination of PC to detain def is moot by the time the trial starts
The lack of a prompt determination of probable cause to detain defendant is moot by the time the trial starts. Moses v. State, 2024 Tex. App. LEXIS 950 (Tex. App. – Dallas Feb. 6, 2024). “Taking as true that Agent … Continue reading
C.D.Cal.: Gang tattoo, baggy clothing, high crime area was RS
“Here, Officer Wardle considered an amalgam of factors: Ortiz was stopped in a high-crime area; he had a clearly visible gang tattoo; and he was wearing baggy clothing capable of concealing a weapon. While the Officers in this case did … Continue reading
VA: Capias for detention of person not functional equivalent of arrest warrant; no PC finding
A Virginia capias for detention of a person is not the functional equivalent of an arrest warrant founded on sworn probable cause. The police view of the inside of defendant’s home that led to a search warrant is suppressed. Commonwealth … Continue reading
IL: A detention hearing right after arrest is not the place for a suppression hearing
A detention hearing right after arrest is not the place for a suppression hearing. Thus, the detention hearing court did not err in not considering Fourth Amendment issues. People v. Parker, 2024 IL App (1st) 232164, 2024 Ill. App. LEXIS … Continue reading
CA5 (en banc): Arrest of “citizen journalist” under a statute never declared unconstitutional was with QI
“Villarreal fails to satisfy her burden on either [qualified immunity] prong. This is not a case about a ‘citizen journalist just asking questions.’ That clever but misleading phrase cannot relieve this court of our obligation to evaluate Villarreal’s conduct against … Continue reading
CA2: Reason to believe ptf was inside justified entry with arrest warrant under Payton
Officers had an arrest warrant for plaintiff, and that gave them the ability to enter his home to look for him under Payton when they had a reasonable belief he was inside. Engelmayer v. Engelmayer, 2024 U.S. App. LEXIS 1617 … Continue reading