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- W.D.Ark.: Parole search waiver moots lack of PC argument
- AR: RS shown for boating while intoxicated stop
- 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
- VA: Outline of a gun in def’s pocket was RS
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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: Search
CA11: Telling ptf to move his car wasn’t a 4A seizure
Ordering plaintiff off a parking lot because of suspected trespassing wasn’t a Fourth Amendment seizure. Watkins v. Joy, 2019 U.S. App. LEXIS 22910 (11th Cir. Aug. 1, 2019). X-ray for contraband on an inmate is not a Fourth Amendment claim. … Continue reading
Reason: The Feds Want To Subject Every Burning Man Attendee to a Warrantless Drug Search
Reason: The Feds Want To Subject Every Burning Man Attendee to a Warrantless Drug Search by Brian Doherty: The Bureau of Land Management sees no Fourth Amendment concerns with searching American citizens for reasons to arrest them without probable cause … Continue reading
D.N.J.: Suggestion def look in console for insurance papers revealing a gun in plain view wasn’t a search
During defendant’s stop, he couldn’t find his insurance papers. Defendant rummaged through papers here and there. The officer suggested defendant look in the center console again, and this time the officer saw a gun. The suggestion he look in the … Continue reading
W.D.Tex.: RS of a weapon nearby in a car authorizes opening the door
“In this case the officers had either probable cause or reasonable suspicion to open the car doors to substantiate their belief that weapons, drugs and money were in the vehicle. Further, they were authorized to take photographs to inventory the … Continue reading
W.D.Mo.: Reaching in def’s car to turn it off wasn’t a search, and plain view of a gun proper
Defendant’s stop was reasonable because the LPN didn’t match the vehicle. His reaching in the car to turn off the ignition was not a search. “As Officer Jenkins was backing out of the vehicle, she looked down and saw what … Continue reading
CA5: Tapping a vehicle tire was a trespass but with RS and was reasonable on the totality
The tapping of a suspicious looking tire on a truck was a trespass under Jones and other cases, but the court finds it was with reasonable suspicion and reasonable on the totality. The tapping of the tire revealed that it … Continue reading
CA7: Using several garage door openers in def’s vehicle to locate his stash house was a reasonable search
Defendant’s vehicle was stopped and several garage door openers were found. Using them to try to find defendant’s stash house was a search and it was reasonable, although close to the edge. United States v. Correa, 2018 U.S. App. LEXIS … Continue reading
D.N.M.: Lifting a bag on an empty bus’s overhead rack to see the name tag was not a search
Travelers have a reasonable expectation of privacy that their luggage will not be manipulated in a way to effectively search it. That does not mean that officers can’t perform a dog sniff or move it without manipulating it. Here, the … Continue reading
CA7: City’s use of “smart meter” is a search, but it is reasonable because it’s not for criminal purposes and law enforcement never knows
The use of a smart meter to collect energy consumption in homes is a search under the Fourth Amendment under Kyllo. It is, however, a reasonable search because it is purely for the use of the power company and city … Continue reading
CA9: Shaving a spot on cattle to look at a brand doesn’t violate 4A
Shaving a spot on cattle to look at a brand doesn’t violate the Fourth Amendment. [Actually, nowhere does anything say that so qualified immunity must apply. The case doesn’t say that, but that’s the bottom line.] Gillette v. Malheur County, … Continue reading
W.D.Tex.: Removal of def’s key fob to press the buttons to locate car was a search that violated a REP in def’s pants pocket
The removal of defendant’s key fob from his pocket to locate his car violated a reasonable expectation of privacy and required suppression of the identity of his car. United States v. Fennell, 2018 U.S. Dist. LEXIS 77041 (W.D. Tex, May … Continue reading
N.D.Ill.: Accidentally transmitted private conversation wasn’t a search
Plaintiff had a conversation near a malfunctioning Motorola handheld radio that transmitted their conversation to the Illinois State Police that was recorded in due course, and then the conversation was passed on resulting in job discipline. The recipients did not … Continue reading
S.D.Ohio: Def was driver for drug dealer selling from car; a trash pull from his house was sufficient to show nexus
More was shown than just that defendant was a drug dealer. He was the driver for a man who regularly did drug deals and he watched them all go down. He was seen leaving a house attributed to him in … Continue reading
E.D.Ky.: Activating a key fob to find the car isn’t a search
Activating a key fob to find the car it belongs to is not a search. “Moreover, the Sixth Circuit has held that ‘[t]he mere insertion of a key into a lock, by an officer who lawfully possesses the key and … Continue reading
MN: Roadside FST and PBT are not searches
Roadside field sobriety testing and then a PBT with probable cause is not a search under the Fourth Amendment. Vondrachek v. Comm’r of Pub. Safety, 2017 Minn. App. LEXIS 318 (Dec. 18, 2017). The officer’s observations of defendant was independent … Continue reading
Law Review: Government Analysis of Shed DNA Is a Search under the Fourth Amendment
Government Analysis of Shed DNA Is a Search under the Fourth Amendment by Tracey Maclin, Boston Univeristy School of Law, 48 Texas Tech Law Review 287 (2015) (http://ssrn.com/abstract=2685766). Abstract:
ID: Court-approved receiver acting on behalf of a creditor is not a state actor for 4A purposes
A court-approved receiver acting on behalf of a creditor is not a state actor for Fourth Amendment purposes. Wechsler v. Wechsler, 2017 Ida. LEXIS 332 (Dec. 6, 2017):
D.N.M.: Def’s claim the officer conducted a pre-search of all bags on a Greyhound bus was based on speculation
The court does not buy defendant’s argument that the officer here waited until all luggage was removed from a Greyhound bus to conduct a feel-up tactile search of the bags in such a way to avoid Greyhound’s surveillance cameras. That’s … Continue reading
CA1: Using def’s keys to find his apt door was a “search” but it was still in GF even though that fact was in warrant application for apt
Defendant was arrested for drug dealing outside his apartment building. A search incident produced a set of keys. The police tried the keys on the apartment door until they worked. They didn’t enter but used the facts they’d developed plus … Continue reading
OR: Testing for semen in 9 yo girl’s underwear obtained by private search required a SW (under state constitution)
Defendant’s housekeeper’s finding likely semen in his 9 year old daughter’s underwear and turning it over to the authorities was a private search. “[T]esting of the underwear for semen was a ‘search’ under the Fourth Amendment because it significantly expanded … Continue reading