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- D.N.M.: Three Franks challenges, one successful
- FL1: Violation of state knock-and-announce statute requires suppression; Hudson not followed
- N.D.Ala.: All parts of a SW are read in context, and that narrows it so it’s not overbroad
- WA: No immediate bail for DV arrest violates neither 4A nor due process
- S.D.N.Y.: Overseas seizure of Russian oligarch’s megayacht not governed by 4A
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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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--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: Scope of search
D.Mass.: Inevitable discovery applies to def giving up passcode to cell phone
Inevitable discovery applies to defendant giving up the passcode to his cell phone by a statement he challenged. The government had an independent basis to get into the phone to search it. United States v. Xiaolei Wu, 2024 U.S. Dist. … Continue reading
DC: Frisk of jacket in car was without RS
Defendant was a passenger in a rideshare, and the car was stopped for a traffic offense. They were all ordered out, and defendant took off his jacket while “blading,” said the officer, and left it in the car. The officer … Continue reading
LA: Def’s lie about living in place to be searched helped GFE to apply to overcome staleness
The trial court and court of appeals both erred in finding that the affidavit for search warrant was “so lacking” in probable cause that the good faith exception should not apply. “The affidavit accompanying the search warrant application explained the … Continue reading
E.D.Tenn.: Items unreasonably seized under SW as outside its scope still not returned because they are forfeitable
Some of the items seized under the warrant were named or were covered by plain view when the police got inside. Some are excludable, but they aren’t returned because the government intends to forfeit. United States v. Abdul-Latif, 2023 U.S. … Continue reading
MA: Officer recording drug deal on cell phone governed by state wiretap law
An officer’s surreptitious recording of a drug deal with a cell phone is an interception of a communication under the state wiretapping law. Commonwealth v. Du, 2023 Mass. App. LEXIS 143 (Oct. 6, 2023). The publicly available address (SoS, website, … Continue reading
DE: When the search is overbroad, the remedy is to limit the product of the search not void it
When the search is overbroad, the remedy is to limit the product of the search not void it. Thomas v. State, 2023 Del. LEXIS 318 (Oct. 2, 2023). There was plenty of information from the CI on which to justify … Continue reading
D.Ariz.: No RS for stop, but def fled when tried to be pulled over and that was
Taking the government’s six proffered circumstances which they claim add up to reasonable suspicion, the court finds them lacking on the totality. But, as defendant was being pulled over, he fled, and that made reasonable suspicion. United State v. Shelton, … Continue reading
D.Me.: “The Government appears to argue that close only counts in horseshoes, hand grenades and warrantless searches so long as the police work was not hallmarked by nefarious intent.”
The warrant was used to search a trailer based on a warrant for the truck, and the warrant was clearly deficient for the trailer. “This case involves a ‘glaring deficiency,’ id., rather than a ‘virtually unnoticeable’ omission. Watson, 498 F.3d … Continue reading
D.Alaska: Seizure of syringe during Terry frisk was reasonable
Seizure of a syringe from defendant’s pocket in a Terry frisk was reasonable even though it could have been a pen. Other things, no. United States v. Endsley, 2023 U.S. Dist. LEXIS 166997 (D. Alaska Sep. 20, 2023). Plaintiff sued … Continue reading
D.Md.: Instagram SW was valid by GFE despite weak PC, but it was excessively searched
“The Instagram Motion [to suppress] will be granted in part. Although the probable cause to search Rivers’ Instagram account was weak, the Leon good faith exception applies and the evidence will therefore not be suppressed on the basis of a … Continue reading
CA5: Arrest on curtilage was subject to questions of fact
Plaintiff raised questions of fact and law as to the officer’s authority to arrest him in his front yard on the curtilage. Summary judgment denied on the merits, but remanded for further qualified immunity analysis. Sauceda v. City of San … Continue reading
CA3: The search exceeding the scope of a warrant justified suppression
The search exceeding the scope of a warrant justified suppression: “But here, the benefit of suppression is neither marginal nor nonexistent. The agents exceeded the scope of authority conferred by the warrant when they either ignored or disregarded the risk … Continue reading
OH8: Dog alert on a car permits search of containers in it
A dog alert on a car was probable cause for a search of it and containers, here a backpack. State v. Kumuhone, 2023-Ohio-2586, 2023 Ohio App. LEXIS 2554 (8th Dist. July 27, 2023). “The contemporaneous tip, the visual details that … Continue reading
Cal.3: PC to search passenger compartment for gun didn’t extend to the trunk
Officers had probable cause to search defendant’s passenger compartment for a firearm. When the gun wasn’t found there, the officer searched the trunk, finding it. The probable cause, however, did not extend to the trunk. People v. Leal, 2023 Cal. … Continue reading
D.D.C.: SEC admin subpoena for law firm cyberattack was narrowed to only affected clients
Covington & Burling was the target of a cyberattack, and the SEC investigated. It wanted the names of all affected clients, but C&B resisted, seeking narrower disclosure. The law firm agreed that only certain affected clients should be disclosed, and … Continue reading
D.Md.: Surveillance and bodycam video supported officer’s contention def had a firearm in sweatshirt pocket
The court viewed the CCTV and body cam videos (included in the opinion) and it’s apparent defendant had a gun in his sweatshirt pocket. “Not every bulge is a weapon,” but this one apparently was. That justified the frisk. United … Continue reading
NJ: Search incident at hospital 90 minutes after arrest was reasonable
Defendant was arrested for first-degree aggravated manslaughter as a result of an accident after he injected himself with fentanyl-laced heroin. He was under arrest at the scene, but he wasn’t actually searched until he was in the hospital. The search … Continue reading
OH5: Pickup of visitor parked on street could be searched with SW for premises where it was suspected of drug transactions there
Defendant’s pickup was parked on the street in front of another man’s house that was searched with a warrant. His truck was searched too, but wasn’t mentioned in the warrant. “We find the search of the truck was authorized by … Continue reading