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- IN: Cell phone ping to locate missing 13-year-old was with exigent circumstances
- NY4: Def proved IAC for failure to move to suppress cell phone search
- TN: Ptf’s actions at DV call justified officers’ greater force
- KS: Def voluntarily disclosed his cell phone passcode to the officers when the officer said he’d get a warrant
- ID: State completely failed to support justification for inventory
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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 -
© 2003-25,
online since Feb. 24, 2003 Approx. 500,000 visits (non-robot) since 2012 Approx. 47,000 posts since 2003 (30,000+ on WordPress as of 12/31/24) -
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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)
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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: Plain view, feel, smell
CA3: There is no REP in the exterior of a package in transit
The initial detention and exterior inspection of the parcel sent to defendant did not implicate his Fourth Amendment rights because it occurred within the guaranteed delivery window. He had no reasonable expectation of privacy in the exterior of the parcel … Continue reading
E.D.Mo.: Putting def’s cell phone into airplane mode wasn’t a search
Putting defendant’s cell phone into airplane mode wasn’t a search. The name “Red” was seen on the screen. There was independent probable cause for the cell phone warrant. United States v. Hudson, 2025 U.S. Dist. LEXIS 14952 (E.D. Mo. Jan. … Continue reading
AR: “[T]he exclusionary rule—absent a showing of bad faith—does not apply in a revocation hearing.”
“[T]he exclusionary rule—absent a showing of bad faith—does not apply in a revocation hearing.” Wallace v. State, 2025 Ark. App. 19 (Jan. 15, 2025). An officer on patrol in a motel parking lot saw defendant’s car. They drove past each … Continue reading
CA1: Report of a dead body in a house for a day didn’t justify warrantless entry
The police entered defendant’s home on a report of a dead body inside. They knew, however, the person was dead at least a day and likely wasn’t inside the home by then. The emergency exception did not apply. United States … Continue reading
M.D.Pa.: Despite state MMJ, smell of MJ still PC under federal law
Despite medical marijuana being legal in this state, the smell of marijuana from a car is still probable cause under federal law. United States v. Skouras, 2025 U.S. Dist. LEXIS 10 (M.D. Pa. Jan. 2, 2025):
CA5: Where 4A claim undecided below, it doesn’t form basis for stay
In the appeal of Texas Top Cop Shop, Inc. v. Garland, posted here, the Fifth Circuit doesn’t rely on the undecided Fourth Amendment claim in deciding on a stay. 2024 U.S. App. LEXIS 32565 (5th Cir. Dec. 23, 2024).* The … Continue reading
NC: Knock-and-talk led to smell of MJ and attempt to bar the door, and that was exigency
The officer came to defendant’s door for a knock-and-talk about marijuana sales, and, when the door was opened, he could smell marijuana. Defendant shut the door and attempted to put a bar up to block access, and that was all … Continue reading
CA2: Plain view seizure of cell phone established by officers’ knowledge of role of cell phones in crime
The evidentiary value of a cell phone for plain view was established here because, when officers saw the phone, they’d been investigating a conspiracy involving cell phone for months. United States v. Kurland, 2024 U.S. App. LEXIS 32177 (2d Cir. … Continue reading
IL: Smell of raw cannabis from car in a recreational state is still PC
“In sum, we hold that the odor of raw cannabis coming from a vehicle being operated on an Illinois highway, alone, is sufficient to provide police officers, who are trained and experienced in distinguishing between burnt and raw cannabis, with … Continue reading
E.D.Wis.: Ptf’s claim judge’s signature on SW was forged fails for not even alleging there was a search
“The plaintiff similarly alleges that Miller forged a judge’s signature on a search warrant. But he does not say anything else about this search warrant. Did law enforcement execute the search warrant? What, or where, did they search? Did they … Continue reading
MO: Plain error doesn’t revive a waived search claim
Defendant didn’t object pretrial or at trial to the search, and he can’t argue plain error now. State v. Lane, 2024 Mo. App. LEXIS 837 (Nov. 19, 2024). The finding defendant was stopped because of a seatbelt violation is not … Continue reading
PA: Merely reaching in car to secure gun in plain view was reasonable under state’s more stringent automobile exception
It was reasonable for the officer to reach in an open door and secure a gun seen in plain view under Pennsylvania’s more stringent automobile exception. Commonwealth v. Saunders, 2024 Pa. LEXIS 1734 (Nov. 20, 2024) (and there’s three opinions; … Continue reading
D.Mont.: Off-roading during fire restriction was RS
Reasonable suspicion and a park violation: “Accordingly, Sergeant Call’s 11 years of experience in Park County coupled with his knowledge of state and county law gave him reason to suspect that Mitchell was potentially engaged in criminal conduct—namely, trespassing and … Continue reading
Reason: Dallas Voters Nix an All-Purpose Excuse for Police Harassment: ‘I Smelled Marijuana’
Reason: Dallas Voters Nix an All-Purpose Excuse for Police Harassment: ‘I Smelled Marijuana’ by Jacob Sullum (“The ballot initiative says a whiff of weed does not establish probable cause for a search or seizure, which was already doubtful in light … Continue reading
FL1: Lack of candor in appeal brief earns admonition
Affirmed per curiam. The concurring opinion: The facts concerning the stop and search in the appeal brief demonstrate a serious lack of candor which the state didn’t even challenge. All counsel included was his cross-examination and omitted the state’s direct … Continue reading
W.D.Pa.: Use of coarse language during prison strip search didn’t make it unreasonable
Prison strip search was not unconstitutional. “Shepard has failed to allege facts to support that the November 2022 search was unreasonable. She acknowledges that such searches are routinely conducted before an inmate leaves the correctional institution for outside medical appointments. … Continue reading
S.D.Ill.: Merely possessing a firearm in a high crime area is not RS
The officer putting a gun to defendant’s head while he was in line at a convenience store was an arrest. Just having a gun on you in Illinois is no longer a crime. “But there was no swiftly developing situation … Continue reading
S.D.Ohio: SW for def’s address produced documents related to another address of his which were lawfully seized
“[T]he Court agrees with Moore that papers listing the 3151 Gobel address that were taken from the 3100 Vienna Woods address fall outside the scope of the search warrant’s plain language. … But that does not end the inquiry as … Continue reading
D.Minn.: No need to test a roach for PC, plus def admitted what it was
“During the stop, Mr. Winston himself confirmed that the roaches were marijuana; his possession charge, however, is not based on them. There was thus no reason to test the roaches to confirm the presence of marijuana. The failure on the … Continue reading
D.N.H.: Federal case can rely on state SW
Defense counsel was not ineffective for not challenging the search warrant in his federal case that was issued by a state court judge because it wouldn’t win. Lessard v. United States, 2024 U.S. Dist. LEXIS 180669 (D.N.H. Oct. 3, 2024).* … Continue reading