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- CA5: Deficient privilege log after records search was waiver
- E.D.Ky.: When court can’t tell the dog alerted, motion to suppress granted
- OH1: A malnourished child isn’t exigency for an infant
- E.D.Pa.: Mandamus doesn’t lie to unseal SW papers
- D.Me.: Looking around house when allegedly “freezing” it was an illegal search
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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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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: Seizure
NYLJ: Major Reform in Street Encounters Enacted by Police Department
NYLJ: Major Reform in Street Encounters Enacted by Police Department (“As a result of a class action lawsuit brought by the Legal Aid Society, the New York City Police Department has agreed to a major reform of its street encounter … Continue reading
W.D.Ky.: Search warrant affiant’s reference to water emoji wasn’t false or misleading; it here referred to meth, not sex
Defendant’s Franks motion fails. Defendants’ use of a water emoji could have been a reference to sex, but it could also be a reference to methamphetamine, as has come up in police training and in other cases such as United … Continue reading
E.D.N.Y.: Village’s Scofflaw law permitting seizure of vehicles for nonpayment of parking tickets violates lessor owner’s 4A rights in vehicle
The plaintiff Toyota Lease Trust owns vehicles it leases to individuals. One of plaintiff’s lessees ran up $1000 in unpaid parking tickets and the Village of Freeport seized the vehicle under its Scofflaw law. The seizure violated the owner’s Fourth … Continue reading
M.D.Pa.: Refusal to show hands when ordered shows no seizure
Defendant’s refusal to show his hands when ordered to by the officer was not a seizure. United States v. Garner, 2023 U.S. Dist. LEXIS 5400 (M.D. Pa. Jan. 11, 2023).* Defendant’s stop was justified and it escalated to reasonable suspicion … Continue reading
CA8: An attempted arrest isn’t a seizure, even without PC
“However, an attempted arrest alone, even if unsupported by probable cause, is insufficient to invoke Fourth Amendment protections against unreasonable seizures. See Hodari D., 499 U.S. at 626 (‘The word “seizure” … does not remotely apply … to the prospect … Continue reading
Cal.: Officer spotlighting a parked car and then approaching isn’t necessarily a seizure
“A sheriff’s deputy patrolling after dark saw three people sitting in a legally parked car in a residential neighborhood, smoking something. He pulled up behind the car, illuminated it with a spotlight, and approached on foot. We granted review to … Continue reading
NY Monroe Co.: Parts of NY red flag law may violate 2A and 4A
Parts of the NY red flag law concern the court. A taking of firearms should be based on a mental health professional’s assessment of danger to protect both Second and Fourth Amendment rights and procedural rights. G.W. v. C.N., 2022 … Continue reading
CA8: “[E]ven if a technical violation of Nebraska law occurred when signing the warrant that is not a basis for suppressing the evidence” under 4A
“[E]ven if a technical violation of Nebraska law occurred when signing the warrant that is not a basis for suppressing the evidence” under the Fourth Amendment. United States v. Becker, 2022 U.S. App. LEXIS 35626 (8th Cir. Dec. 27, 2022). … Continue reading
OH8: Calling for drug dog after warning ticket issued unreasonably extended stop
“Regardless, Officer Ashenfelter acknowledged that the traffic violation investigation was completed at 11:10. He called for the canine unit at 11:12, and the canine unit arrived at 11:18 a.m. [¶] Thus, the evidence reflects that the officer, after completing his … Continue reading
S.D.N.Y.: The SW was as particular as the information officers had would allow
“In this case, by contrast, there is no indication that law enforcement had a wealth of detailed information that was not reflected in the search warrant. The Premises Warrant was not required to provide more details regarding the specific electronic … Continue reading
NY Daily News: NYPD settles lawsuit over unconstitutional warrant checks
NY Daily News: NYPD settles lawsuit over unconstitutional warrant checks (“Conducting a warrant check on someone without sufficient cause violates a person’s fourth amendment rights, civil rights attorneys say.”) WaPo: NYPD ends tactic of prolonging stops to check for warrants … Continue reading
S.D.Ind.: Forced Covid test didn’t violate 4A
Requiring plaintiff, who said he was positive for Covid-19, be tested before putting him in hospital was reasonable under the Fourth Amendment. It’s less intrusive than swabbing for DNA. Alternatively, qualified immunity applies. Mercado v. Columbus Reg’l Hosp., 2022 U.S. … Continue reading
MN: “Deer-in-the-headlights” look is a factor in RS
“But statements about a deer-in-the-headlights facial expression are commonplace in caselaw assessing whether a police officer has articulable, reasonable suspicion to justify a stop under the Fourth Amendment. There are over a dozen federal appellate decisions, including an opinion from … Continue reading
OR: Holding def’s ID for 30 minutes for no apparent reason was a seizure without RS
Retaining defendant’s ID for 30 minutes before even thinking about questioning his identity was a seizure without reasonable suspicion. State v. Orman, 322 Or. App. 707, 2022 Ore. App. LEXIS 1479 (Nov. 16, 2022). Defendant was not seized when he … Continue reading
CA6: City’s order closing hotel ptfs lived in didn’t violate 4A
Plaintiffs’ Fourth Amendment rights weren’t violated by the city’s order closing the motel they lived in because it was uninhabitable. There was a limited time they were without their personal property, but they were shortly allowed access to retrieve things. … Continue reading
D.N.J.: Encountering 4 officers at landing on stairs who wouldn’t let him pass was a seizure
Defendant encountered four officers standing on a landing, and they impeded his movements. This amounted to a seizure. United States v. Jackson, 2022 U.S. Dist. LEXIS 194856 (D.N.J. Oct. 26, 2022). Mistaken identity on the person being seized is usually … Continue reading
NC: Whether def was seized was what she could only believe
Defendant claimed she was lost and was stopped by police, blocking her exit. [Oversolicitously,] the court opines the officer probably thought he did nothing wrong but this was a seizure in defendant’s mind, and it was without reasonable suspicion. No … Continue reading
M.D.Pa.: 14 yo kidnapping victim’s 911 call created exigency for def’s cell phone seizure
A 14-year-old kidnapping victim called 911 that she was taken three days earlier, and defendant was finally detained as a result. His phone was seized and a warrant obtained. The seizure of the warrant was reasonable based on all the … Continue reading
E.D.Pa.: Searching administratively impounded taxi states 4A claim
Plaintiff states a claim against the Philadelphia Parking Authority for detaining his temporarily impounded taxi for a later search without justification. Mbagwu v. PPA Taxi & Limousine Div., 2022 U.S. Dist. LEXIS 167790 (E.D. Pa. Sep. 16, 2022). A cross-sex … Continue reading
D.Ariz.: Following for 30 miles not a seizure
Following defendant for 30 miles is not a seizure. Finally, there was a consensual encounter. The R&R found it not; the USDJ disagrees. United States v. Ramos, 2022 U.S. Dist. LEXIS 166913 (D. Ariz. Sep. 14, 2022).* 2½ months isn’t … Continue reading