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ABA Journal Web 100, Best Law Blogs (2017); ABA Journal Blawg 100 (2015-16)
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 30,000 posts since 2003~~~~~~~~~~~~~~~~~~~~~~~~~~
Fourth Amendment cases,
citations, and linksLatest Slip Opinions:
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FDsys, many district courts, other federal courts
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To search Search and Seizure on Lexis.com $Research Links:
Supreme Court:
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Briefs online (but no amicus briefs)
Oyez Project (NWU)
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General (many free):
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Lexis.com $
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F.R.Crim.P. 41
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)
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Category Archives: Probation / Parole search
S.D.N.Y.: Parolee’s curfew violation justified parole search
A stop and search of a parolee for a curfew violation was reasonable. United States v. Joseph, 2021 U.S. Dist. LEXIS 32456 (S.D. N.Y. Feb. 22, 2021). Officers entered with an arrest warrant and later followed up with a search … Continue reading
AR: Reasonableness of a probation search has to be presented to revocation court first
Defendant didn’t argue in the revocation court that the probation search was unreasonable, so it can’t be argued on appeal. Mathis v. State, 2021 Ark. App. 49, 2021 Ark. App. LEXIS 57 (Feb. 3, 2021). Defendant was on release and … Continue reading
CA7: Computer search condition was not related to crime of conviction and was thus unreasonable
Defendant’s computer search release condition had no rational relationship to the crime. He was not a sex offender and there was no computer link to his crimes. United States v. Morgan, 2021 U.S. App. LEXIS 2972 (7th Cir. Feb. 3, … Continue reading
N.D.Ohio: Reasonableness of a parole search can include considering def’s criminal record
Knights on parole and probation searches is a reasonableness on the totality test, and this measures up. Defendant’s criminal record is a relevant factor for the officers to consider. United States v. Sharp, 2021 U.S. Dist. LEXIS 18768 (N.D. Ohio … Continue reading
NC: State statute on parole searches didn’t permit search of home, just the person
State statute authorized searches of the person or parolees, not places, and the search here exceeded the authority granted by statute, applying Samson v. California. State v. McCants, 2020 N.C. App. LEXIS 969 (Dec. 31, 2020). The search warrant was … Continue reading
CA9: Putting key in a car door to locate right car violates Jones and Jardines
Prior case law on inserting a key in a car door is not a search is contrary to Jones and Jardines. As a parole search, however, it can be reasonable if the car is connected to the parolee. United States … Continue reading
D.Neb.: Knights eliminated stalking horse theory of police using POs to conduct searches
Knights eliminated the stalking horse theory of police using POs to conduct searches because they can, too. United States v. Brun, 2020 U.S. Dist. LEXIS 239791 (D. Neb. Dec. 21, 2020). There was reasonable suspicion for defendant’s stop from a … Continue reading
OH7: Drug testing of drug def after conviction but before sentencing was reasonable
A court ordered drug test after conviction but before sentencing was reasonable because it factors into sentence. State v. Fisher, 2020-Ohio-6829, 2020 Ohio App. LEXIS 4672 (7th Dist. Nov. 7, 2020). Defendant, convicted of child pornography, had a release condition … Continue reading
DE: Actual presence of accused not required for suppression hearing and video appearance constitutional
A virtual suppression hearing that was a mixed question of law and fact didn’t require the actual presence of the accused under the Sixth Amendment’s confrontation clause, following United States v. Rosenschein, 2020 U.S. Dist. LEXIS 129889 (D.N.M. July 23, … Continue reading
NY3: CI showed PC; GPS warrant corroborated the CI
The CI appeared and testified to the probable cause. A separate search warrant for GPS tracking corroborated the CI. People v. Jackson, 2020 NY Slip Op 07251, 2020 N.Y. App. Div. LEXIS 7450 (3d Dept. Dec. 3, 2020). The CI … Continue reading
MA: Home confinement and GPS monitoring as a condition of release pending sentencing was reasonable
Home confinement after conviction but pending a motion for new trial was not an unreasonable seizure. It was discretionary on conviction. GPS monitoring as well was a search under Grady, but, on a balancing of interests, it was reasonable on … Continue reading
E.D.Tenn.: Def doesn’t even attempt a Franks offer of proof and it fails
“Defendant fails to provide the requisite offer of proof to make a substantial preliminary showing that Agent Celeste intentionally or recklessly included false information in the Affidavit. Likewise, defendant fails to explain the absence of such an offer of proof, … Continue reading
CA2: NY Family Court orders can suffice as SWs
“New York Family Court orders provide an independent basis for police officers to enter peoples’ homes. We have repeatedly recognized that, ‘[i]n child-abuse investigations, a Family Court order is equivalent to a search warrant for Fourth Amendment purposes.’ Southerland v. … Continue reading
WV: SW not needed to seize cell phone from a person, even when it’s expected to be found
The warrantless seizure of defendant’s cell phone was reasonable. The officers didn’t need to get a search warrant before taking it off his person. State v. Deem, 2020 W. Va. LEXIS 706 (Oct. 20, 2020). The officer’s prior knowledge of … Continue reading
S.D.Tex.: Arrest was with PC, despite lack of state grand jury indictment
Defendant was charged with child pornography after his computer system password was linked to it. A state grand jury declined to indict him. He sued under § 1983 in state court, and it was removed to federal court. “Without providing … Continue reading
CA6: PO’s seizure of cell phone for search lacked RS and is suppressed
The probation seizure and then warranted search of defendant’s cell phone was unreasonable and conducted without reasonable suspicion. Probation seized the phone and then got a search warrant for it, but it all lacked justification. There wasn’t reasonable suspicion because … Continue reading
