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- MO: Initial bail setting under Gerstein not adversarial
- D.Alaska: Protective sweep after def’s arrest not justified, but there was exigency otherwise
- D.Colo.: Four day delay in getting SW for seized car wasn’t unreasonable
- FL3: Cell phone dump in civil case denied; no showing of need
- E.D.Va.: Must plead prejudice when delay of a cell phone SW is alleged
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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)
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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: Body searches
E.D.Mich.: Possible violation of state law doesn’t mean exclusion in federal court
The CI’s identity was not kept secret, and there was probable cause for the search warrant. The affidavit was not bare bones. The possible violation of state law isn’t shown to be of constitutional magnitude for exclusion of evidence in … Continue reading
NC: Warrantless blood draw from unconscious driver violated 4A
“We now address the application of the Supreme Court’s decisions in Birchfield v. North Dakota and Missouri v. McNeely to the situation at bar, specifically, the warrantless blood draw from defendant for purposes of determining blood alcohol content. We hold … Continue reading
WaPo: Lawsuit: Mass search of Georgia high school students included genital touching, exposure of female students’ breasts
WaPo: Lawsuit: Mass search of Georgia high school students included genital touching, exposure of female students’ breasts by Radley Balko:
Law.com/Daily Report: Students Subjected to Invasive Body Searches Sue South Georgia Sheriff
Law.com/Daily Report: Students Subjected to Invasive Body Searches Sue South Georgia Sheriff by R. Robin McDonald: An Atlanta lawyer representing students subjected to invasive body searches during a mass-and warrantless-drug sweep at a South Georgia high school says the local … Continue reading
WaPo: Watch Blog: Forced catheterizations are a good reminder that the drug war is as barbaric and cruel as ever
WaPo: Watch Blog: Forced catheterizations are a good reminder that the drug war is as barbaric and cruel as ever by Radley Balko:
CA6: Body cavity search warrant that involved only an x-ray and laxatives and time was reasonable; def, confronted with explanation of the process, produced the drugs on his own
Officers obtained a search warrant for a body cavity search. He was taken to the hospital and was told that he would be given an x-ray and a laxative and he’d stay there until the drugs suspected of being in … Continue reading
WaPo: A panty liner triggers a TSA pat-down just one step removed from a pap smear
WaPo: A panty liner triggers a TSA pat-down just one step removed from a pap smear by Petula Dvorak:
The Hill: Dems back body cameras for ICE agents
The Hill: Dems back body cameras for ICE agents by Rafael Bernal: Democrats in the House want to require immigration agents to wear body cameras amid concerns over increased immigration enforcement and the hiring of new agents.
SW for a pacemaker: WaPo: A man detailed his escape from a burning house. His pacemaker told police a different story.
WaPo: A man detailed his escape from a burning house. His pacemaker told police a different story. by Cleve R. Wootson Jr.:
CBS News: Police body cameras on the rise, but how effective are they?
CBS News: Police body cameras on the rise, but how effective are they?: The New York Police Department is implementing the country’s largest body camera program. More than 20,000 officers will wear the cameras once the rollout is complete by … Continue reading
PA: Warrantless blood draw of unconscious def after car wreck was reasonable
A warrantless blood draw was permissible where defendant was unconscious at the scene of an accident and unconscious through the blood draw at the hospital. Commonwealth v. March, 2017 PA Super 18, 2017 Pa. Super. LEXIS 46 (Jan. 26, 2017). … Continue reading
UT: Discovery order for DNA taking based on showing of PC was valid way to get it
Defendant was accused of burglary and aggravated assault, but he could not be identified by his victims. The state applied for a DNA collection order via the discovery rules, and defendant said he would not comply. Then an order was … Continue reading
techdirt: ACLU Suggests Jury Instructions Might Be A Fix For ‘Missing’ Police Body Camera Recordings
techdirt: ACLU Suggests Jury Instructions Might Be A Fix For ‘Missing’ Police Body Camera Recordings by Tim Cushing: We’ve written plenty of posts about police body cameras — how useful they can be and how useless they often are. What … Continue reading
CO: Officers had clear indication def had drugs in mouth for body search on exigency
There was a clear indication that defendant had hidden drugs in his mouth, and that was exigency for a search of his mouth. When the state as appellee argues there is probable cause for defendant’s arrest and the opening brief … Continue reading
What Would New York Police Body Cameras Record?
NYTimes: What Would New York Police Body Cameras Record? by Joseph Goldstein: As cities around the country outfit their officers with body cameras, officials are facing questions about what will be recorded and what will not.
New American: South Dakota Forcibly Catheterizes Suspects Refusing to Submit to Urine Test
New American: South Dakota Forcibly Catheterizes Suspects Refusing to Submit to Urine Test by Joe Wolverton, II: South Dakota Forcibly Catheterizes Suspects Refusing to Submit to Urine Test The state of South Dakota is forcibly catheterizing people who refuse to … Continue reading
Argus Leader: Police use catheters, force to collect urine samples
Argus Leader: Police use catheters, force to collect urine samples by Mark Walker, Patrick Anderson and John Hult: Practice brought to light in recent case out of Pierre; AG says it’s not illegal Police in South Dakota are collecting urine … Continue reading
WaPo: Radley Balko’s “The Watch” Blog: Video shows white cops performing roadside cavity search of black man [quoting author]
Radley Balko’s “The Watch” Blog: Video shows white cops performing roadside cavity search of black man:
SD: Hospital blood draw was for medical purposes, not as agent of police; “small town” folks working together argument fails
Just because this DUI happened in a small town and the hospital drew blood from defendant on admission, as it usually does, that doesn’t mean that the hospital was acting as an agent of the police when doing the blood … Continue reading