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- D.Utah: Police slow walked traffic stop without RS
- IA: Court ordered privilege review of search was at its expense
- D.Kan.: Preservation request under SCA isn’t a search or seizure
- UT: RS on a prior day was not RS for stop on day in question
- CA2: Ptf alleged invasion of privacy for 4A violation, and that’s enough
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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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Congressional Research Service:
--Electronic Communications Privacy Act (2012)
--Overview of the 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: Seizure
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
S.D.N.Y.: Warrantless seizure of a vehicle to pay fines violates 4A and 14A
The warrantless seizure of a vehicle because of owed fines violates the Fourth and Fourteenth Amendments. Santander Consumer USA, Inc. v. City of Yonkers, 2022 U.S. Dist. LEXIS 164416 (S.D.N.Y. Sep. 12, 2022). Pretrial detainees also have no reasonable expectation … Continue reading
MN: When prosecution shows private search doctrine applies, defense has burden to show government action
When a defendant moves to suppress the evidence obtained from a warrantless search and the State proves that the private search doctrine applies, the burden to show that the private party was acting on behalf of the government falls on … Continue reading
W.D.N.C.: Not 4A violation to order def to keep hands visible
It is not a violation of the Fourth Amendment to tell the defendant to keep his hands visible and not reach in the car during a stop. If a person can be ordered out of the car for officer safety, … Continue reading
W.D.Tex.: Protective sweep justified despite hearing no one inside
A protective sweep of defendant’s apartment was reasonable on the totality despite the officers not hearing anyone inside. United States v. Turner, 2022 U.S. Dist. LEXIS 144215 (W.D. Tex. Aug. 12, 2022). “At no point did Veney voluntarily submit to … Continue reading
CA11: “the nude dancing and adult entertainment industry is closely regulated” for 4A purposes
“Based on a substantial history of heavy regulation, we conclude that the nude dancing and adult entertainment industry is closely regulated for Fourth Amendment purposes so that no reasonable expectation of privacy could exist for the proprietor. From limitations concerning … Continue reading
CA5: An intimidating police presence is not a seizure
An intimidating police presence is not a seizure. Tyson v. Cty. of Sabine, 2022 U.S. App. LEXIS 20902 (5th Cir. July 28, 2022). Defense counsel can’t be ineffective for not taking depositions in his criminal case to develop his search … Continue reading
CA6: A police order to come out of one’s house is a seizure
“These cases clearly establish that forced compliance with orders is a Fourth Amendment seizure. Mendenhall and Saari establish that words that compel compliance with the officer’s orders to exit a house constitute a seizure. Thus, when taking the facts in … Continue reading
CA8: Shove was not a seizure
A mere shove was not a Fourth Amendment seizure nor excessive force. Martinez v. Sasse, 2022 U.S. App. LEXIS 16624 (8th Cir. June 16, 2022):
CA9: Failure to deliver SW at scene of search violated Rule 41, but no suppression here
Failure to deliver the whole search warrant to defendant violated Rule 41(f)(1)(C), but it wasn’t deliberate so no suppression. United States v. Manaku, 2022 U.S. App. LEXIS 16337 (9th Cir. June 14, 2022). 2254 petitioner’s ineffective assistance of counsel for … Continue reading
WA: A detainee’s racial and ethnic factors are a part of “all the circumstances” in determining a seizure under state constitution
Under the state constitution, whether a person is “seized” must consider the person’s racial and ethnic factors that influence their perceptions. State v. Sum, 2022 Wash. LEXIS 317 (June 9, 2022):
New article: Unintentional Destruction: Torres v. Madrid, in Defining a Fourth Amendment Seizure of the Person as a Common Law Arrest, Turned Terry v. Ohio into Collateral Damage,
George M. Dery III, Unintentional Destruction: Torres v. Madrid, in Defining a Fourth Amendment Seizure of the Person as a Common Law Arrest, Turned Terry v. Ohio into Collateral Damage, 49 Hastings Const. L.Q. 83 (2022), Abstract:
N.D.Cal.: If bumping def on a bike was a seizure, it ended when he ran away
The officer bumped defendant on a bike. It was potentially a seizure, but “Under Hodari D. and Torres, the seizure thus ended when Daniels got up and began running down the driveway.” United States v. Daniels, 2022 U.S. Dist. LEXIS … Continue reading
CA2: County order to surrender firearms on losing pistol permit wasn’t a “seizure” of his effects
Plaintiff had his pistol permit revoked under New York law. The County’s requirement he surrender his long guns when that happens is not unreasonable. The court questions whether it’s even a “seizure” of his effects under the Fourth Amendment. (He … Continue reading
MO: Telling def to “stay right there” and “sit down” was a seizure
Telling defendant to “stay right there” and “sit down” was a seizure, and here it was with reasonable suspicion. State v. Higgs, 2022 Mo. App. LEXIS 274 (May 3, 2022).* Probable cause was shown: “A reasonable judge could, and did, … Continue reading
E.D.Tenn.: USDJ doesn’t second guess USMJ’s credibility determinations in the R&R
USDJ doesn’t second guess USMJ’s credibility determinations in the R&R on a motion to suppress. United States v. Bowman, 2022 U.S. Dist. LEXIS 69156 (E.D.Tenn. Apr. 14, 2022).* A bag left outdoors at an apartment complex for more than a … Continue reading
Kansas Reflector: Kansas law enforcement routinely produces error-filled reports on seized cash and property
Kansas Reflector (via Rawstory): Kansas law enforcement routinely produces error-filled reports on seized cash and property by Duane Schrag: