Archives
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Recent Posts
- AR: RS def rented a hotel room was sufficient for search waiver; PC not required
- LA5: No standing to challenge search of shooting victim’s cell phone in def’s possession
- N.D.Okla.: Cell phones possessed by tribal police not subject to return under Rule 41(g)
- E.D.Ark.: Landlord and tenant refused rental property inspection and SW was validly issued and protected privacy interests
- D.D.C.: Judge shopping after denial of SW inappropriate; could have appealed to DJ
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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)
--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: If arrest invalid, inventory based on it is too
Defendant’s arrest was invalid, so the inventory of his car was invalid. Commonwealth v. Williams, 2016 Mass. Super. LEXIS 19 (Wooster Feb. 18, 2016). The protective sweep here was invalid, but that did not require suppression of the search. Excising … Continue reading
W.D.Mo.: Despite govt instigated private seizure of phone, emails admissible because the govt already had them
Defendant’s wife seized his cell phone and turned it over to the police at their suggestion, but only because he was communicating with what he believed were underage girls for purposes of sex. The police already had all the emails … Continue reading
D.Neb.: Protective sweep was for evidence not persons, but there was an independent basis for the SW
The protective sweep in this case was not a look for persons but evidence, and the body cam audio supports that conclusion. However, there was an independent basis for a search warrant, and the motion to suppress guns found in … Continue reading
D.Minn.: Even if def’s stop was without RS, his flight and subsequent traffic violations were an independent basis for arrest
Officers had reasonable suspicion to approach defendant’s vehicle for being engaged in a pending drug sale. “However, even if officers lacked reasonable suspicion to support the stop of defendant’s vehicle, the Court finds that defendant’s attempt to flee from law … Continue reading
PA: In a child murder case, the police entry merely to look for other children in the home did not taint subsequent SW
Defendant was sentenced to death for murder of a two-year old boy. On the search issue, officers entered the house only to see if there was another child in the house that he was caring for. They came back with … Continue reading
ID: Child sex offense witnesses were discovered prior to likely illegal phone search
Defendant was under investigation for various offenses, including sex crimes. His cell phone was seized when he was arrested for burglary. Minor sex offense witnesses were identified by the allegedly illegal search of the phone, and the court doesn’t suppress … Continue reading
WI: Police had independent source of information of CP to search computer seized in connection with wife’s suicide investigation
Defendant’s wife allegedly committed suicide. In the investigation, the police interviewed their daughter and she said that her mother was using her computer just before her death. The computer was seized as a part of the suicide investigation. Later the … Continue reading
CA1: Govt proved independent source for SW; nexus to computer shown by its proximity to forged documents
Removing the information from the alleged illegal search from the affidavit for search warrant still shows probable cause from independent sources, and the motions to suppress were properly denied. Nexus to search one defendant’s computer came from his carrying it … Continue reading
TN: CI’s reliability mooted by trash pull
Whether the CI was reliable was essentially moot based on a trash pull that showed all kinds of marijuana cuttings. State v. Altman, 2015 Tenn. Crim. App. LEXIS 556 (July 13, 2015).* [Usually, the courts say that the CI was … Continue reading
W.D.Va.: Def consented but withdrew it; search unreasonable
Despite defendant’s claim that he didn’t speak much English at all, being Russian speaking Ukranian, the court finds consent valid based on gestures on the video where his voice was largely inaudible. However, he clearly withdrew consent and told the … Continue reading
D.S.D.: Independent source saves search where there was a trespass on the curtilage
“Law enforcement trespassed on Johnson’s property without a warrant and thereby violated Johnson’s Fourth Amendment rights. But probable cause existed without the evidence from the trash pull to search Johnson’s red 1994 Cadillac DeVille and his person. Evidence discovered in … Continue reading
IN: After suppression of evidence, state can’t backdoor it into evidence by a testifying snitch
The search of the juvenile defendant’s backpack was illegal under the Fourth Amendment and Indiana Constitution, but the state backdoored the evidence by calling a snitch to identify it. This was part of the fruit of the poisonous tree and … Continue reading
CA5: Independent source doctrine saved SW from findings during protective sweep
The government satisfied its burden on the independent source doctrine without a remand being necessary. The entry was a protective sweep for weapons and the search warrant affidavit didn’t contain anything from that entry. Also, the district court’s order found … Continue reading
IN: When stop of car is because owner has suspended DL but owner is passenger, stop must end
The officer stopped the car because the owner had a suspended DL. The owner was in the back seat and said who she was and that she was suspended. At that point, there was no justification for asking the driver … Continue reading
WA: Probation search of iPod without RS was unconstitutional
A probation search of an iPod without a warrant was improper under state law. The statute doesn’t help the court, but the department’s rules do, and they limit searches to a potential offense being investigated and this was not. Thus, … Continue reading