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- W.D.Ark.: Parole search waiver moots lack of PC argument
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- W.D.Mo.: Wrong address in SW wasn’t fatal where right house was searched
- NY: Failure to show independent source for officer’s observation of def required reversal
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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)
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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: Seizure
NY: No RS where two men talked car-to-car and then moved, and one leaned in other car; nothing seen passed
There was no reasonable suspicion to stop and detain defendant for what the officer thought could have been a hand-to-hand drug transaction where he saw nothing exchanged. Defendant stopped along side another car facing in different directions, and they talked … Continue reading
N.D.Iowa: Police car pulling up with activated blue and red lights wasn’t necessarily a seizure; here, it is not
“I conclude that a law enforcement officer’s activation of red and blue emergency does not, by itself, establish a seizure for Fourth Amendment purposes. However, it is a factor that weighs in favor of finding a seizure. Certain other facts … Continue reading
OH2: Municipal Court can’t issue SW for out-of-state records
An Ohio municipal court does not have authority to issue a search warrant for collection of records from out of state. State v. Worthan, 2024-Ohio-21, 2024 Ohio App. LEXIS 33 (2d Dist. Jan. 5, 2024). Defendant approached the officers and … Continue reading
GA: Probationer’s housemate didn’t object to probation search, so it was valid as to him, too
When you live with a probationer with a Fourth Amendment waiver, your stuff in the premises is likely subject to search, too. Here, it’s decided on defendant’s failure to object to his alleged implied consent [like he knew he could] … Continue reading
OH7: No standing in package with assumed names
Defendant lacked standing in a package shipped under and to assumed names, neither of which could be linked to him as a known alias. State v. Herbert, 2023-Ohio-4490, 2023 Ohio App. LEXIS 4311 (7th Dist. Dec. 11, 2023). “We think … Continue reading
OH7: Taking backpack of arrestee to handcuff doesn’t make it not subject to search incident
“Appellant had the bag on her back at the time the officer arrested her for obstructing official business. The officer’s removal of the bag from the arrestee in order to handcuff her did not eliminate his ability to search the … Continue reading
NY Erie Co.: Temporary Extreme Risk Protection Order didn’t satisfy 4A for criminal case
An officer sought a Temporary Extreme Risk Protection Order (TERPO) under NYS law for defendant’s allegedly pointing a gun at his alleged victims from a car. This is a civil remedy, and, here, it did not provide any protection under … Continue reading
IA: Shining flashlights or patrol car spotlights on driver in an already parked car is not a seizure
Defendant was seen driving fast in a parking lot near a bar after 2 am. Officers parked near him and approached on foot. They shined their flashlights on the driver from both sides. The use of flashlights was not a … Continue reading
M.D.Pa.: Car company with security interest had claim for alleged illegal disposal of seized car
A motorist was stopped and searched and his car was seized, towed, and impounded. Later it was sold by the towing company for expenses. Toyota had a security interest in it. Toyota stated a claim for loss of the car. … Continue reading
WV: A summons is not a 4A seizure
Claiming plaintiff was “forced to turn himself in” on a summons didn’t state a claim for a Fourth Amendment seizure. State ex rel. Atty.-Gen. v. Ballard, 2023 W. Va. LEXIS 473 (Nov. 9, 2023). “The warrant in this case listed … Continue reading
N.D.Cal.: City policy of towing and impounding vehicles for fees owed violated 4A of lessor
Plaintiff leased a vehicle to a motorist who got behind in payments. By the time it was ready to repossess, VW Credit found out that the city had the car towed and held by a towing company which refused to … Continue reading
CA8: Officer corroborated only CI’s objective information, not the crux, but that was enough for PC for automobile exception
There was no corroboration of the incriminating part of the CI’s tale that defendant, a convicted felon, kept a gun hidden under the hood of his car. “But Officer Princivalli had no reason to find Moore’s statements untrustworthy or unreliable. … Continue reading
D.Nev.: Def can’t be conclusory attempting to show standing in a rented vehicle
Conclusory statement of standing in a rented vehicle fails without some proof. “Defendant’s expectation of privacy rests on his contention that he rented the Taurus on Turo and lacked knowledge of the possibly stolen character of the vehicle. But if … 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
WV: Break in the chain of custody of DNA evidence taken after seizure is not a 4A violation
An after seizure alleged break in the chain of custody of DNA evidence taken is not a Fourth Amendment violation. Timothy C. v. Straughn, 2023 W. Va. LEXIS 339 (Sep. 15, 2023). Defendant’s LPN wasn’t visible until after the stop, … Continue reading
ME: State constitutional arguments must be developed; citing it not enough
(1) The tracking device placed on defendant’s vehicle by court order was with probable cause. (2) “For a claim under the Maine Constitution to be deemed preserved for our review, however, the party advancing the claim cannot merely allude to … Continue reading
OH1: Automobile exception does not apply to a purse removed from vehicle before PC developed
“In this appeal, we are asked to consider the narrow application of the automobile exception to the Fourth Amendment’s warrant requirement: whether officers may, in the course of a car search, search a container held roughly 25 feet away from … Continue reading
CA6: Officer parking next to def’s car was not a seizure
Police parking next to a defendant’s car is not a seizure. United States v. Gartrell, 2023 U.S. App. LEXIS 22719 (6th Cir. Aug. 28, 2023). Covid limitations on visitation at a small hospital wasn’t a Fourth Amendment violation, among other … Continue reading