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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© 2003-21,
online since Feb. 24, 2003
WebPage Visits: real non-robot hits since 2010; approx. about 35,000 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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Briefs online (but no amicus briefs)
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General (many free):
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www.fd.org
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
Privacy Foundation
Electronic Frontier Foundation
NACDL’s Domestic Drone Information Center
Electronic Privacy Information Center
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"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)
Website design by Wally Waller, Little Rock
Category Archives: Plain view, feel, smell
GA: Looking at CP while sitting in a car is PC for the device and car
Defendant was seen in his car looking at child pornography on his cell phone. That gave the police probable cause to enter to seize the phone. They later got a search warrant for it. State v. Palacio-Gregorio, 2021 Ga. App. … Continue reading
IN: With three people in the vehicle faint smell of MJ wasn’t as to this def
Some smell of marijuana in car with three people didn’t establish probable cause without the officer being able to say it came from defendant’s person. I.G. v. State, 21A-JV-479 (Ind. App. Sept. 10, 2021). Defendant ran from a fight in … Continue reading
DE: Officer’s vague and untimely ID of MJ wasn’t PC here
Officer’s vague and untimely identification of the odor of marijuana was not probable cause in itself on the totality of these circumstances. Juliano v. State, 320, 2019 (Del. Sept. 10, 2021):
IN: Training of smell of MJ enough for PC
The distinctive smell of marijuana is enough for probable cause, and the officer’s training is enough to tell it. Bunnell v. State, 2021 Ind. LEXIS 545 (Sept. 2, 2021):
CA9: Govt proved inevitable discovery of victims despite suppressing search of motel room
The officers’ investigation had progressed enough to have embarked on a course to readily identify defendant’s victims before the illegal search of the motel room. The government proved inevitable discovery. In addition, this wasn’t so flagrant, despite the granting of … Continue reading
CA9: Supervised release electronic search condition not shown to have nexus to purposes of SR
“We nevertheless vacate the suspicionless search condition because the district court ordered suspicionless searches of Leonard’s ‘electronic devices and their data, including cell phones, computers, and electronic storage media’ without making ‘a properly supported factual finding’ that ‘establish[es] some nexus … Continue reading
NY4: Smell of PCP alone is PC
“New York is no outlier on this issue. Indeed, as far as we can discern, every single court in the United States to ever consider this precise issue has come to the same conclusion as Darby and Sanchez: a trained … Continue reading
D.S.C.: Def can’t get discovery of all SW affidavits from officer for 2 1/2 years
Defendant does not get discovery of every search warrant affidavit over the last 2½ years prepared by the detective in this case. “Defendant has offered no justification for the request of all affidavits prepared by Detective Jackson over the last … Continue reading
N.D.Ohio: Smell of MJ on def’s person not PC to search his car
The officer had no suspicions of defendant before drawing his gun on him. The smell of marijuana on defendant’s person, but not his car, was not probable cause for a search of the car. The officer testified he was quite … Continue reading
Cal.3d: DNA obtained from def’s arrest in another unprosecuted case could be used to link him to a prior murder
Defendant’s DNA obtained from an arrest with probable cause but where he wasn’t formally charged could be used to link him to a prior murder, relying on Maryland v. King. People v. Roberts, 2021 Cal. App. LEXIS 692 (3d Dist. … Continue reading
N.D.Ga.: Cell phone lock screen is in plain view
On a cell phone, “information that simply appears on a lock screen, without requiring digital entry, is in plain view.” United States v. Blair, 2021 U.S. Dist. LEXIS 156445 (N.D.Ga. Aug. 18, 2021). Defendant didn’t have a reasonable expectation of … Continue reading
W.D.N.Y.: Govt’s failure to raise GFE before USMJ is waiver
Government waived the good faith exception by not raising it before the USMJ. United States v. Stearns, 2021 U.S. Dist. LEXIS 154919 (W.D.N.Y. Aug. 17, 2021). The trial court didn’t make sufficient findings on whether a handgun in plain view … Continue reading
N.D.Ohio: Picking up gun to check SN to run it was not a valid plain view
Picking up defendant’s firearm to see the serial number to check if it was stolen was a search, and it was without probable cause. Obviously, not all guns are stolen. After that, the officer determined that defendant was a felon … Continue reading
N.D.Miss.: Rubberstamping no-knock SWs not a basis for suppression
Defendant’s contention is that the warrant issuing judge issues no-knock warrants without question is not shown to be a basis to suppress under Hudson v. Michigan. The remedy is a 1983 action. United States v. Bryant, 2021 U.S. Dist. LEXIS … Continue reading
W.D.La.: Court credits testimony officer could smell MJ as def’s vehicle drove by
“Corporal Moak testified that he smelled the odor of marijuana coming from the vehicle when he passed it on a narrow street. After the traffic stop was initiated and Moak approached the vehicle, he detected the ‘overwhelming’ odor of marijuana … Continue reading
E.D.Mo.: Flight is part of the RS calculus
Defendant fled from a police stop, and he wasn’t seized until the police laid hands on him. The hunch he was carrying a gun was correct. “First, as Officer Nash was attempting to exit his marked police car to engage … Continue reading
E.D.Wis.: Citing forfeiture seizure statute in SW application and warrant doesn’t require forfeiture, too
The government sought a search warrant under Rule 41 and also cited the forfeiture seizure statute, 18 U.S.C. § 983. Failure to seek forfeiture doesn’t void the search. United States v. Palma, 2021 U.S. Dist. LEXIS 137870 (E.D.Wis. May 27, … Continue reading
DC: Petr’s debit card records are basic third-party records under Miller and aren’t protected under Carpenter
Debit card financial records are basic third party records, like the bank records in Miller, and Carpenter offers no protection to the petitioner despite his claim of privacy interest in the information. And, if it did, the good faith exception … Continue reading
D.P.R.: Passing reference to a 4A violation in motion to suppress doesn’t preserve it
Passing reference to a Fourth Amendment violation isn’t enough to preserve the issue. United States v. Polaco-Hance, 2021 U.S. Dist. LEXIS 132937 (D.P.R. July 16, 2021). There was probable cause for the search of defendant’s car under the warrant. A … Continue reading
W.D.Wash.: Def’s arrest away from the place of search was justified by PC
There was probable cause for defendant’s arrest away from the place of execution of the search warrant (Summers and Bailey). United States v. Pelayo, 2021 U.S. Dist. LEXIS 126671 (W.D. Wash. July 7, 2021). When defendant opened his door, the … Continue reading
