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- Natl. L. Rev.: The Reasonableness of Retaining Personal Property Post-Seizure and the Ascendancy of Text, History, and Tradition in Fourth Amendment Jurisprudence
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- CA6: Electronic devices were “property under his control” subject to search while on supervised release
- N.D.Tex.: PC and GFE questions were close, and that’s good enough
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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 (27,400+ on WordPress as of 7/23/24) -
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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: Reasonableness
MN: Order for buccal swab during pendency of case requires SW
A search warrant is required for a buccal swab after a criminal case is proceeding. State v. Steeprock, 2024 Minn. App. LEXIS 345 (July 29, 2024); State v. Jones, 2024 Minn. App. LEXIS 412 (Aug. 29, 2024). The search warrant … Continue reading
D.S.D.: Misidentifying cell phone make in SW no error where number and pass code were correct
Misidentifying defendant’s cell phone for a search warrant as a Motorola when it was a Samsung is a mistake that can be overlooked. It had the phone number in the warrant and defendant’s pass code opened it. Finally, the good … Continue reading
D.Minn.: Warrantless ion scan of car door handle was reasonable
A DNA ion scan of a car door handle was reasonable, relying on United States v. Jones, 2024 WL 1810220 (D. Minn. Apr. 25, 2024), finding no reasonable expectation of privacy in an ion scan on an apartment door from … Continue reading
N.D.Cal.: SW affidavit need only “tend to show” a violation of law for a SW to issue
Defendant posted anonymously about killing libtards and their children (“parasites”) and “black robed despots” (judges), and he was a San Jose police officer. Officers knew he had nine guns. Officers got a search warrant for his computer to link him … Continue reading
CA11: Week’s delay in getting SW for cell phone was reasonable; def in custody and didn’t ask for it back.
The warrant for defendant’s cell phone wasn’t issued for a week, but the delay was reasonable. He was in jail with a diminished privacy interest, and he didn’t ask for it back. United States v. Watson, 2024 U.S. App. LEXIS … Continue reading
MI: Unreasonable mistake of law justifies exclusion
Defendant was stopped based on what the court previously found was a lack of reasonable suspicion from an unreasonable application of law. It previously remanded to the court of appeals to determine whether the exclusionary rule should apply. The court … Continue reading
W.D.Ky.: Delayed search of a computer was not unreasonable under either 4A or Rule 41(e)(2)(B)
The delayed search of defendant’s computer was not unreasonable under the Fourth Amendment or Rule 41(e)(2)(B) because it wasn’t practical to do so at the scene. United States v. White, 2024 U.S. Dist. LEXIS 117526 (W.D. Ky. July 3, 2024).* … Continue reading
D.N.M.: Summary judgment for defs denied in Torres v. Madrid on remand
On remand in Torres v. Madrid, 141 S. Ct. 989, 209 L.Ed.2d 190 (Mar. 25, 2021), the defendant’s summary judgment motion is denied. Torres v. Madrid, 2024 U.S. Dist. LEXIS 117079 (D.N.M. July 2, 2024).* An out-of-state temporary plate where … Continue reading
CA2: Briefly seeing occupants of a house searched nude was not unreasonable
Under Los Angeles County v. Rettele, plaintiffs’ nude exposure to searching officers during a raid on a home wasn’t unreasonable. Jury verdict for defendants affirmed. Also, this was not a strip search. Miller v. City of N.Y., 2024 U.S. App. … Continue reading
LA1: Opening car door to check for others after speeding stop was reasonable where windows were overtinted
Defendant was seen at 10 pm on radar going 94 in a 35, and the officer gave chase for over four miles, sometimes clocking defendant at 135. When finally stopped and with defendant in the police car, the officer went … Continue reading
D.P.R.: PR nighttime search rules irrelevant in federal court
Puerto Rico cases on nighttime search aren’t relevant in federal court. United States v. Pastrana-Román, 2023 U.S. Dist. LEXIS 238527 (D.P.R. March 9, 2023),* adopted, 2024 U.S. Dist. LEXIS 106442 (D.P.R. May 17, 2024).* Defendant didn’t show good cause for … Continue reading
W.D.Ky.: State law alleged defects in warrant process not applicable in federal court without showing why suppression is an appropriate remedy
A state search warrant was used to prosecute in federal court. Defendant raised numerous state law defects to the warrant that did not constitute Fourth Amendment violations. “Even if these warrants were procedurally deficient under state law, Gray has supplied … Continue reading
CA10: Eight-hour seizure of home investigating OD before getting SW was unreasonable
“After Corban Elmore’s teenage son suffered a drug overdose at Elmore’s home, law-enforcement officers secured the scene and prohibited anyone from entering the house. The officers then continued to investigate and allowed almost eight hours to elapse before applying for … Continue reading
MO: Search incident can happen at mobile booking center without going to jail
A search incident can occur even where defendant is at a mobile booking place without being transported to jail. State v. Boehmer, 2024 Mo. App. LEXIS 314 (May 14, 2024). Defendant’s concession in the trial court that the stop and … Continue reading
CA7: Strip search was reasonable, no matter the motive
Plaintiff’s strip search was objectively reasonable, no matter the subjective intent that motivated it. Jones v. Degrave, 2024 U.S. App. LEXIS 10953 (7th Cir. May 6, 2024). Plaintiff doesn’t show that GPS monitoring as a condition of his state probation … Continue reading
D.Colo.: Four day delay in getting SW for seized car wasn’t unreasonable
The seizure of this car was with probable cause that a gun would be found in it. The four day delay in applying for a search warrant for the car was not unreasonable. As to standing, defendant transferred ownership of … Continue reading
E.D.Cal.: Stop for expired registration during Covid extension of time to register cars was objectively unreasonable
The stop of defendant’s car for expired tags but within the period of the state’s Covid executive order extending time to register cars was objectively not reasonable, even where the officer was unaware of the meaning of the EO. United … Continue reading
CA6: The state’s violation of a prison policy doesn’t make a 4A claim
Plaintiff inmate “cannot state a claim for a violation of prison policy because prison policy directives are insufficient to create a liberty interest under the Fourth Amendment. See Olim v. Wakinekona, 461 U.S. 238, 250-51 (1983); ….” IFP motion denied. … Continue reading
MO: Search incident to 96 hour mental health hold was reasonable
Defendant was picked up on a warrant for 96 hour mental commitment hold. The search incident to that was reasonable. “[T]he deputies’ search of Salcedo, incident to Salcedo being taken into custody pursuant to a warrant under section 632.305 for … Continue reading
Cal.2d: Questions posed during a traffic stop while waiting for the records check to come back do not extend the stop
Questions posed during a traffic stop while waiting for the records check to come back do not extend the stop. People v. Felix, 2024 Cal. App. LEXIS 154 (2d Dist. Mar. 7, 2024). Defendant’s bad search claim as part of … Continue reading