Archives
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Recent Posts
- D.N.M.: DEA’s failure to make a detailed inventory in violation of policy doesn’t require exclusion of evidence
- WaPo: These cities bar facial recognition tech. Police still found ways to access it.
- C.D.Cal.: SW materials in case with weighty public interest ordered unsealed
- DC: Accepting a law license is consent to trust account subpoenas
- AR: RS def rented a hotel room was sufficient for search waiver; PC not required
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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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--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: Particularity
Two on alleged overbreadth
The Facebook warrant was kind of overbroad but was determined valid as a whole. “So as in Purcell, ‘the structure of the warrant rendered the specification of the suspected offense, while constitutionally indispensable, functionally unnecessary.’ Purcell, 967 F.3d at 183.” … Continue reading
W.D.Wash.: iCloud SW temporal limit was impractical
An iCloud search warrant was not overbroad because the warrant sought a lot of material. Based on Apple’s protocols, it essentially had to be, and a time restriction wouldn’t be of any use. United States v. Woolard, 2021 U.S. Dist. … Continue reading
NY: SW for premises did not include vehicle parked there for which separate PC wasn’t shown
Defendant was long under surveillance for drug deals, and a search warrant was obtained for his person and premises. It did not include his vehicles. The search authorization did not encompass his vehicle on the premises outside the house, and … Continue reading
IA: Oral permission to amend SW to correct address of place to be searched made SW particular
When the executing officers arrived at the place of search, they realized that the particular description of the place to be searched was wrong. The affiant (apparently) called the issuing judge and got permission to amend the warrant’s place to … Continue reading
IN: Cell phone seized under SW could be searched later than the deadline in the warrant
The state had the forfeiture claimant’s cell phone in hand, but didn’t actually search it within the limit of the warrant. This was reasonable, following Wolf v. State, 266 P.3d 1169, 1174 (Idaho Ct. App. 2011). Brown v. Eaton, 2021 … Continue reading
D.P.R.: When emails are searched, a taint team isn’t always required; a large amount may be seized for later search
Ex ante search restrictions are rare. The warrant process is concerned with what may be searched for and seized, not necessarily how, and a taint teams isn’t always required. The officers could seize a large number of emails and then … Continue reading
N.D.Ga.: “Any and all” in a SW is severable to maintain particularity
Catch-all language, like “any and all” in a list of things to be seized, is severable to narrow the warrant. United States v. Qadri, 2021 U.S. Dist. LEXIS 13975 (N.D. Ga. Jan. 26, 2021). “Based on the totality of the … Continue reading
A.F.: Particularity and avoiding general warrants in electronic searches
“In charting how to apply the Fourth Amendment to searches of electronic devices, we glean from our reading of the case law a zone in which such searches are expansive enough to allow investigators access to places where incriminating materials … Continue reading
AR: Wrong address on SW not fatal where affiant was executing officer and the right place was searched
The wrong address on the search warrant didn’t make the warrant unparticular where the officer applying for the search warrant observed two controlled buys there from a distance and then executed the warrant on the right place. Kellensworth v. State, … Continue reading
E.D.Wash.: Where buy money was recorded, SW for it has to itemize it
Where buy money has recorded serial numbers, that’s required in a search warrant for the money to satisfy particularity. Also, the good faith exception did not apply. United States v. Contreras-Aguilar, 2021 U.S. Dist. LEXIS 8613 (E.D. Wash. Jan. 15, … Continue reading
Cal.4: Drunk in public with a vehicle justifies a vehicle search under the automobile exception
Drunk in public with a vehicle justifies a vehicle search under the automobile exception. People v. Sims, 2021 Cal. App. LEXIS 33 (4th Dist. Jan. 12, 2021). A search warrant that resulted in a search where three buildings were on … Continue reading
GA: Cell phone believed to be on def’s person at time of robbery and murder is subject for SW for evidence of the crimes
The affidavit for the warrant showed probable cause and particularity for search of defendant’s cell phone for evidence of an armed robbery and murder [essentially on the officer’s experience]. The trial court suppressed a pre-warrant search of defendant’s cell phone, … Continue reading
E.D.Tenn.: Address wasn’t required where picture of property was in SW
Defendant’s address wasn’t included in the affidavit for the search warrant, but its picture was and there was no mistake on the place searched. That was sufficient. United States v. Lingo, 2021 U.S. Dist. LEXIS 3861 (E.D. Tenn. Jan. 8, … Continue reading
CA11: Not IAC to not challenge recording jail calls
Defense counsel wasn’t ineffective for not challenging recording jail calls [actually stated as a 2254(d) failure]. Garcia v. Sec’y, 2021 U.S. App. LEXIS 314 (11th Cir. Jan. 6, 2021).* The CSLI warrant was particular and not a general warrant, and … Continue reading
D.V.I.: Not showing target a “particularized list” of things to be seized doesn’t justify exclusion
Failure to tell the target of a search warrant or his lawyer who showed up what’s being seized by showing the warrant itself doesn’t justify applying the exclusionary rule. The attachments incorporated into the affidavit were present at the scene … Continue reading
N.-M.: Broad cellphone search authorization was narrowed to emails and text messages and was particular
The command authorization for a search of defendant’s iPhone was reasonable and limited to files of emails, text messages, and search history as to his extramarital affairs before and after his wife’s death. A video found in an email was … Continue reading
WY: Questions about travel plans are allowed to put trip in “context”
Basic questions about where defendant and his passenger were going were reasonable to put their trip into “context.” That led to reasonable suspicion. Pryce v. State, 2020 WY 151, 2020 Wyo. LEXIS 178 (Dec. 16, 2020). (And one could ask: … Continue reading
M.D.Pa.: Error in USPS tracking number of parcel in SW was a “mere technical error” when it was readily apparent they had right package
Error as to USPS tracking number in an anticipatory warrant wasn’t fatal and didn’t make the warrant not particular. All the other information was correct as to sender, recipient, description, and shipping location. This was a “mere technical error” that … Continue reading
TX14: SW for car with only color, 4 doors, and race and gender of driver in Houston was not particular
All the police had was the color of the sedan, its number of doors, and the race and gender of its driver to indicate that the sedan in the affidavit was the same sedan as the one seen in the … Continue reading
CA6: SW with wrong address and color of building was still particular enough in location
The search warrant was wrong on the address and colors of the place to be searched. Following the description in the warrant, however, led to only one building: The place searched. The officer involved was there to ensure it was … Continue reading