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- MA: Cell phone call logs don’t require a search warrant
- D.Kan.: Drug dog touching car door handle with nose isn’t unreasonable search
- D.N.M.: DEA’s failure to make a detailed inventory in violation of policy doesn’t require exclusion of evidence
- WaPo: These cities bar facial recognition tech. Police still found ways to access it.
- C.D.Cal.: SW materials in case with weighty public interest ordered unsealed
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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)
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--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: Plain view, feel, smell
D.V.I.: Boat without lights at night is subject to stop
A boat operating at night without lights in U.S. Customs waters violates federal law and it is subject to stop. United States v. Romero-Amaro, 2022 U.S. Dist. LEXIS 140477 (D.V.I. Aug. 8, 2022). In the tire chalking case, nominal damages … Continue reading
E.D.Cal.: 4A does not require medical personnel participate in a prison strip search
The Fourth Amendment does not require medical personnel participate in a prison strip search. Graham v. Wright, 2022 U.S. Dist. LEXIS 136026 (E.D. Cal. Aug. 1, 2022). Defendant’s stop for late night knocking on the door of a house where … Continue reading
W.D.Pa. shows you can win a MJ smell as PC argument
“Based on the record developed at the suppression hearing, the Court finds that Detective McGee did not have reasonable suspicion to seize Defendant for the following reasons: (1) the Court does not credit Detective McGee’s testimony regarding the odor of … Continue reading
E.D.Ark.: Probation officer conducting home visit can smell around the door for drug use
A probation officer at defendant’s house for a home visit could smell around the door, and, here, the smell of marijuana being used inside was evident. That was not unreasonable. United States v. Toney, 2022 U.S. Dist. LEXIS 120895 (E.D. … Continue reading
CA6 & FL1: Fact hemp is legal doesn’t make smell of MJ lack PC
The fact that hemp was legal doesn’t make the smell like marijuana a lack of probable cause. United States v. McCallister, 2022 U.S. App. LEXIS 18642 (6th Cir. July 7, 2022) (people in a park); Hatcher v. State, 2022 Fla. … Continue reading
OH: Plastic baggie caught in bookbag zipper wasn’t “immediately apparent” for plain view
“While executing an arrest warrant, police discovered a closed bookbag with a plastic baggie stuck in its zipper. Without obtaining a search warrant, they opened the bookbag and discovered illegal drugs. The question for us is whether the warrantless search … Continue reading
D.Ariz.: PC so lacking, “this is a no-brainer”
“The Court finds that the search warrant affidavit comes nowhere near to establishing probable cause for the search of the cell phone. Simply put, this is a no-brainer. In fact, the government’s conclusory argument noted above demonstrates the futility of … Continue reading
CA8: Shoplifting arrest supported search incident of backpack; inevitable anyway
The search of defendant’s backpack incident to a shoplifting arrest produced a firearm. Even if the search incident wasn’t proper, it was inevitable the backpack would be inventoried at the jail.United States v. Trogdon, 2022 U.S. App. LEXIS 15860 (8th … Continue reading
D.Ore.: Officer can be cross-examined at trial on his SW affidavit
The government’s motion in limine against crossing the IRS agent on his search warrant affidavit is denied. The search has already been litigated, and defendant can’t use this as a “mini-Franks hearing.” The government can object if it goes far … Continue reading
E.D.Cal.: Inmate has no standing in a contraband cell phone
A person in prison has no standing to contest a wiretap on a contraband cell phone. United States v. Yandell, 2022 U.S. Dist. LEXIS 91166 (E.D.Cal. May 20, 2022). “The facts of this case indicate that [Officer] Leitzen, while conducting … Continue reading
TX13: Stop was consensual but became unreasonable
“We therefore conclude that, although appellant’s encounter with police may have been consensual initially, it advanced into a ‘seizure’ for Fourth Amendment purposes before appellant made any incriminating statements. Because there was no warrant, reasonable suspicion, or probable cause to … Continue reading
M.D.Pa.: Missing dashcam video of stop and search not shown to be material
The missing dashcam video was not shown to be material. Defendant’s drug paraphernalia was in plain view and it was readily apparent what it was. That led to an automobile exception search. United States v. Griffith, 2022 U.S. Dist. LEXIS … Continue reading
E.D.Mo.: Empty sandwich bag in car not subject to plain view; incriminating nature not immediately apparent
The government failed to establish reasonable suspicion for defendant’s stop on an anonymous tip where nothing of substance was furnished contrary to Navarette. Moreover, it wasn’t immediately apparent an empty sandwich bag in the car was incriminating for plain view. … Continue reading
OH: Material witness warrant requires PC
“Based on the language in the [Fourth Amendment] and Ohio Constitutions, we now hold that material witnesses are entitled to these basic, fundamental rights and therefore agree with the Eighth District that the state’s request for a warrant to detain … Continue reading
MA: Dog alert to buttocks PC for strip search
After witnessing suspicious movement, and observing white powder on the vehicle dashboard where defendant had been sitting, police had probable cause to arrest defendant on drug charges and consequently were justified in conducting a search of the defendant incident to … Continue reading
MA: Firearms “improperly secured” found in search of house not forfeitable
Firearms allegedly found “improperly secured” in defendant’s home during a search are not contraband subject to forfeiture. Commonwealth v. Fleury, 2022 Mass. LEXIS 149 (Mar. 31, 2022).* Defendant was stopped for overtinted windows, and, when he got out of the … Continue reading
M.D.Tenn.: Copies of what were notarized kept by the notary are third-party records
Defendant had documents notarized at a Nashville law office where the practice of the lawyer-notary, not required by law, to copy what was notarized, and they did it for free. The government found out about it and subpoenaed the records. … Continue reading