Archives
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Recent Posts
- LA4: Merely having a concealed firearm isn’t RS for a frisk
- OR: Merely driving off the road wasn’t RS, but adding the driver’s demeanor at the time was
- OH6: Trial court’s failure to explain RS under Rodriguez required remand
- CA6: Asking def before a patdown during arrest what he had on him wasn’t barred by Miranda
- NY Queens: PC shown for SW blood drawn at hospital after car wreck
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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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General (many free):
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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)
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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: Independent source
MA: Obtaining CSLI by SW in 2014 was independent source against 2010 obtaining by request (and Carpenter was 2018)
The state obtained defendant’s CSLI without a showing of probable cause in 2010. In 2014, they sought it again with a search warrant. Carpenter came in 2018. The independent source doctrine applied in the 2014 search, and defense counsel wasn’t … Continue reading
N.D.Ga.: Reissuance of a better SW to Google after a motion to suppress wasn’t unreasonable
As to one challenged search of Google, when the government says it won’t use challenged evidence at trial, the motion to suppress becomes moot. A motion to suppress another search warrant to Google led to reissuance of a search warrant … Continue reading
GA: Even if GPS tracker was unconstitutionally placed, it didn’t affect later SW for vehicle
Defendant first claimed the vehicle was his when the officer asked, and he consented to a search of it. After a few loose rounds of ammunition were found, he disavowed ownership. It turned out there was also a tracking device … Continue reading
E.D.Ky.: Late night view through def’s apartment window violated Jardines but there was still PC without it
Officers conducted a drug investigation into defendant’s apartment and ultimately went to his window in the night to look in and used a flashlight. That was a violation of the Fourth Amendment under Jardines, and the view has to be … Continue reading
CA9: 4A standing isn’t jurisdictional, so it doesn’t have to be decided
Standing for Fourth Amendment purposes is not jurisdictional, so the court can consider the merits instead. United States v. Spadafore, 2020 U.S. App. LEXIS 2922 (9th Cir. Jan. 28, 2020). The legality of the search warrant for defendant’s car is … Continue reading
CO: After first SW for cell phone was suppressed for Franks violation, second was valid with independent source
Defendant was subjected to two search warrants for his cell phones in possession of the police. A motion to suppress the first search was granted because the officer recklessly included false information that deprived it of probable cause. The police … Continue reading
CA9: Info of illegal search was put into second SW affidavit and independent PC was shown
In a felon in possession case, there was a prior illegal search by state troopers. ATF picked up the case immediately and applied for a search warrant that included the information from the illegal search, and there was independent evidence … Continue reading
NJ: While first DNA sample violated 4A, second was based on independent source and was valid
The first DNA sample taken from defendant violated the Fourth Amendment. The state, however, got a do over and it used untainted information to get a second which was valid based on independent source. State v. Camey, 2019 N.J. LEXIS … Continue reading
ID: State didn’t preserve independent source issue below so it can’t argue it on appeal
A motion to suppress cell phone contents was granted, and the state appealed. At trial, it cited a case without stating the holding that was an independent source case, and that’s not enough. In addition, the state didn’t litigate independent … Continue reading
PA: ID made as a result of warrantless search suppressed, but that which was seen before may be testified to
An officer’s identification made wholly as a result of a warrantless search renders that identification tainted and inadmissible. If, however, eyewitness identification of a defendant occurred prior to illegal conduct by law enforcement may be admissible, if based on observations … Continue reading
CA7: Govt illegally entered def’s house but they had plenty of PC and were going to get a warrant; thus, independent source saves the illegal search
“All agree: the DEA entry team entered Huskisson’s house unlawfully. We do not condone this illegal behavior by law enforcement; the better practice is to obtain a warrant before entering a home. Ordinarily, the evidence found here would be excluded. … Continue reading
CA7: Def’s texting photos of a firearm to others that police saw was an independent source for the search
Defendant had texted a copy of a photograph of his AK-47 on his cell phone to another, and the police saw it. That gave cause and an independent source to search the phone for it. “We agree with the district … Continue reading
CA4: Entry into house while waiting for SW to be procured doesn’t require suppression
Police entered defendant’s house to secure it after sending one officer to get a search warrant. The entry didn’t require suppression of evidence because there was an independent source for the information in the search warrant application. United States v. … Continue reading
N.D.Ill.: Officer’s embellishments of drugs involved told to others didn’t undermine the real PC that existed to stop def
Defendant’s conversations were picked up on a wiretap and concerned his marijuana dealing and being a felon in possession of a firearm. Despite officer embellishments in other types of drugs defendant was involved in shared with other officers (heroin, etc.), … Continue reading
CA11: When information in a SW affidavit comes from an illegal source, it is purged; here, PC remains
Excising that which was allegedly illegally obtained from the affidavit for this search warrant, probable cause still remains. United States v. Fleur, 2019 U.S. App. LEXIS 4899 (11th Cir. Feb. 20, 2019). There was no independent probable cause for the … Continue reading
D.Neb.: Initial entry into hotel room was unlawful, but affidavit for SW showed PC before that happened, and SW not suppressed
Even though the officer’s entry into the hotel room was unlawful, the officer had probable cause before that. So, even ignoring the observations in the room, the warrant will not be suppressed. United States v. Sandoval, 2018 U.S. Dist. LEXIS … Continue reading
D.Minn.: 1A retaliatory SW claim defeated by actual PC for the warrant as an independent source
Plaintiff’s claim that a search warrant for his house was retaliatory for First Amendment activities doesn’t overcome the fact there was independent probable cause for the warrant. Therefore, the Fourth Amendment claim fails. Fredin v. Clysdale, 2018 U.S. Dist. LEXIS … Continue reading
MN: Independent source doctrine obviated need to decide private search
Defendant appeals his sexual assault conviction. His victim came to his house to bum a cigarette, and she stayed to drink with defendant and his girlfriend. She fell asleep and awoke in the morning, fully clothed, with defendant’s girlfriend yelling … Continue reading
CA6: Dist.Ct.’s findings don’t support inevitable discovery, so court applies independent source instead
The district court’s analysis doesn’t support application of the inevitable discovery exception because the court didn’t make sufficient findings on the second part of the test. Instead, the record fully supports the independent source doctrine instead. United States v. Chapman-Sexton, … Continue reading