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- 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
- DC: Accepting a law license is consent to trust account subpoenas
- AR: RS def rented a hotel room was sufficient for search waiver; PC not required
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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,
citations, and links -
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Congressional Research Service:
--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: Drug or alcohol testing
TX: Warrantless seizure of blood drawn at hospital for diagnostic purposes unreasonable
The trial court properly granted defendant’s motion to suppress challenging the State’s seizure and search of vials of his blood drawn at a hospital for medical purposes. The government’s testing constituted a warrantless search of his blood sample in violation … Continue reading
LA1: Protective sweep completely unjustified and suppressed
Police surveilled defendant’s home for two hours before he arrived to arrest him. In that two hours, there was nothing that suggested anybody else was in the house. When police arrested him, they conducted a protective sweep which was facially … Continue reading
ND: Refusal for BAC test came after SW and not from impled consent law
Defendant’s refusal for a BAC test didn’t come until after a warrant issued, and the implied consent law wasn’t material. State v. Nice, 2019 ND 73, 2019 N.D. LEXIS 65 (Mar. 13, 2019). Defendant moved to set aside his plea … Continue reading
Business Insider: This ER doctor is about to launch the first marijuana breathalyzer, and it could completely upend how we do drug testing
Business Insider: This ER doctor is about to launch the first marijuana breathalyzer, and it could completely upend how we do drug testing by Erin Brodwin
AZ: Police relying on binding appellate precedent was subject to GFE
Police following state appellate precedent at the time of defendant’s blood test, later changed, was subject to the good faith exception. State v. Weakland, 2019 Ariz. LEXIS 56 (Feb. 25, 2019). Defendant filed what’s treated as a successor 2255 over … Continue reading
WA: Breath test was valid as search incident
A breath test conducted under the implied consent law is a valid search incident to arrest. The state constitution does not impose a higher standard. State v. Nelson, 2019 Wash. App. LEXIS 354 (Feb. 14, 2019). Defendant didn’t raise a … Continue reading
PA: Any additional penalties for refusal to do a breath test violates Birchfield
Any additional penalties for refusal to do a breath test violates Birchfield. Commonwealth v. Monarch, 2019 Pa. LEXIS 346 (Jan. 23, 2019). Defendant was arrested with probable cause, and the search incident to his arrest provided probable cause for a … Continue reading
Dept. of Labor has proposed an unemployment drug-testing rule, and comment period has closed
thefix.com: Proposed Unemployment Drug-Testing Rule Set To Be Finalized by Lindsey Weedston:
Cert. granted: Mitchell v. Wisconsin: Warrantless blood draws from the unconscious
ScotusBlog: Mitchell v. Wisconsin, 18-6210 (granted Jan. 11, 2019). Issue: Whether a statute authorizing a blood draw from an unconscious motorist provides an exception to the Fourth Amendment warrant requirement. Posted here: WI: Drinking and driving until unconsciousness obviates def’s … Continue reading
CA11: Drug testing of substitute teacher applicants was reasonable
Drug testing of substitute teacher applicants was reasonable. School employment is different and protection of the environment of children is paramount. Friedenberg v. School Board of Palm Beach County, 2018 U.S. App. LEXIS 35905 (11th Cir. Dec. 20, 2018):
IL: Fatal accident alone not PC for blood draw; no exigency argued either
Just because defendant was involved in a fatal accident where his passenger died, there wasn’t probable cause for a blood draw. The state did not argue exigent circumstances below or on appeal, but that would also require probable cause. People … Continue reading
TX: Officers jumped the gun on facts for exigency based warrantless blood draw; suppression affirmed
Defendant was in a “catastrophic car crash” and was at the hospital. Officers suspected defendant had been driving under the influence. Medical treatment and IVs were expected, and a warrantless blood draw was done. It turned out that it was … Continue reading
National Law Review: With Wide-Spread Legalization of Marijuana, Has A Public Employer’s Ability to Test for Marijuana Gone up In Smoke?
National Law Review: With Wide-Spread Legalization of Marijuana, Has A Public Employer’s Ability to Test for Marijuana Gone up In Smoke? by Ryan P. Heiden:
NY1: Tossing backpack from car is waiver of REP
Defendant had no reasonable expectation of privacy in a backpack he tossed from a car as he was being stopped by the police. (This conviction was February 2013; nearly six years being decided on appeal.) People v. Febo, 2018 N.Y. … Continue reading
E.D.Mich.: Govt showed basis to get SW for def’s blood to prove he wasn’t taking the oxy he was prescribed
Defendant’s oxycodone use was tipped to the police by an automated system that he was prescribed 50 oxys a day for five years [yet wasn’t dead]. “The indictment further alleges that from November 2012-November 2017, Defendant filled prescriptions on a … Continue reading
KS: Def was removed from a van and her purse left behind; it wasn’t subject to search incident
Defendant was sitting in a van when she was gotten out and then arrested. Her purse was left behind. Her purse was not subject to a search incident when she’d been handcuffed and led away. The state’s argument that inevitable … Continue reading
ME: First blood draw was potentially contaminated, so second was valid under exigent circumstances
The state showed by a preponderance of the evidence that there were exigent circumstances for a warrantless blood draw. Natural dissipation of alcohol alone is not an exigency under McNealy. The first blood draw was potentially contaminated, so a second … Continue reading