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ABA Journal Web 100, Best Law Blogs (2017); ABA Journal Blawg 100 (2015-16) (discontinued 2018)
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© 2003-22,
online since Feb. 24, 2003 Approx. 350,000 visits (non-robot) since 2012 Approx. 40,000 posts since 2003~~~~~~~~~~~~~~~~~~~~~~~~~~
Fourth Amendment cases,
citations, and linksLatest Slip Opinions:
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To search Search and Seizure on Lexis.com $Research Links:
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General (many free):
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Federal Law Enforcement Training Center Resources
FBI Domestic Investigations and Operations Guide (2008) (pdf)
DEA Agents Manual (2002) (download)
DOJ Computer Search Manual (2009) (pdf)
Stringrays (ACLU No. Cal.) (pdf)
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)
ACLU on privacy
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NACDL’s Domestic Drone Information Center
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Criminal Appeal (post-conviction) (9th Cir.)
Section 1983 Blog"If it was easy, everybody would be doing it. It isn't, and they don't."
—Me“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!”
"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."
---Pepé Le Pew
—Johnson v. United States, 333 U.S. 10, 13-14 (1948)
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Category Archives: Nighttime search
DE: People inside isn’t exigency for nighttime SW
The justification for a nighttime search warrant was insufficient as a matter of law. The mere presence of people in the house is not exigency. State v. Harrison, 2022 Del. Super. LEXIS 302 (July 14, 2022). The USMJ found defendant … Continue reading
ID: The necessity of a nighttime search authorization can be inferred from the showing of PC as a whole
The request for a nighttime search can be inferred from the affidavit for the search warrant as a whole. “Reading the affidavit as a whole, it is reasonable to infer that the interests of justice were best served by the … Continue reading
MS: Judicial notice proper that SW execution at 11 pm is not during daylight hours
A court can take judicial notice that execution of a search warrant at 11 pm is not during daylight hours in Mississippi. Doe v. Doe, 2021 Miss. App. LEXIS 473 (Nov. 9, 2021) (only recognizing rule; this is not a … Continue reading
D.Minn.: This nighttime search was reasonable and not overly intrusive
Nighttime searches can be overly intrusive, but, on balance, this one was not unreasonable. United States v. Jerome, 2021 U.S. Dist. LEXIS 148848 (D.Minn. Aug. 9, 2021):
N.D.Ohio: Alleged ambiguity in whether nighttime search authorized resolved by all the circumstances in favor of it
It wasn’t obvious that the search warrant did not permit a nighttime search, and it was presented to the state judge at night involving a shooting that night. The circumstances were apparent that the search was to happen then. Moreover, … Continue reading
N.D.Cal.: Potential for risk of violence justified nighttime search
Defendant’s motion to suppress on several grounds is denied. The affidavit showed probable cause, and the good faith exception would apply anyway. The affidavit for a firearm wasn’t stale; the information about weapons was still “fresh” even though a shooting … Continue reading
OH2: Nighttime SW approved essentially just because police wanted to search ASAP
The court sustains a nighttime search warrant based solely on the fact that there were some sales of drugs from the house without specifying the time, and that it was “urgent” that the raid happen now for drugs, potential weapons, … Continue reading
OH6: SW with nighttime search authorization can be executed in daytime, too
A search warrant with a nighttime search authorization can be executed in the daytime, too. State v. Flores, 2018-Ohio-3980, 2018 Ohio App. LEXIS 4307 (6th Dist. Oct. 1, 2018) [Daytime warrant execution is just safer. That’s why there’s a high … Continue reading
CA5: 2 am knock-and-talk that led to alleged consent and excessive force claim gets no QI
2 a.m. knock and talk may have been unreasonable, and summary judgment for officers is reversed. Plaintiff closed her door and they insisted upon entry. The officers were investigating whether plaintiff’s son committed trespass that night. Plaintiff also stated a … Continue reading
D.Nev.: Good cause shown for execution of SW at night because of neighborhood children
The government showed good cause for execution of a search warrant at night because of defendant’s house’s proximity to a school on break that would likely have kids around in the day in case the raid became violent. In any … Continue reading
D.Nev.: Nighttime search clause in SW moot where search was during day
Police showed probable cause for a DNA search warrant in an effort to connect defendant to an armed robbery. The warrant had a nighttime search clause. Since this all happened during daylight hours, any issues with the nighttime clause are … Continue reading
E.D.N.C.: Post-release supervision home search before dawn wasn’t reasonable
Defendant was subject to home post-release supervision visits conducted at reasonable times. This one was 6:00-6:15 am when sunrise was nearly 7 am. This was effectively a nighttime search of his house and was thus unreasonable. Suppressed. United States v. … Continue reading
CA9: 4 am knock-and-talk violated implied license of Jardines
Officers came to defendant’s house at 4 am for a knock-and-talk to arrest him. They heard a crashing noise in the backyard and found defendant there. The subsequent search of defendant’s house was presumptively unreasonable and without any lawful justification. … Continue reading
NY3: Nighttime search was justified, and defendant wasn’t even home
Police justified a nighttime search warrant at defendant’s house. He was a suspect in a robbery with a knife to the victim’s throat where the victim was forced into an apartment. In the ensuing struggle, the victim said the suspect … Continue reading
MI sustains a 4 am knock-and-talk; a depressing must read for practitioners there
This 4 a.m. knock-and-talk was reasonable. Seven police officers with vests and guns showed up to get a consent and got it. Defendant was dealing marijuana butter in a MMJ state. People v. Frederick, 2015 Mich. App. LEXIS 2289 (Dec. … Continue reading
OH5: Being on porch waiting for keys before 8 pm was not a nighttime search
The daytime search provision is 7 am to 8 pm. Officers were on defendant’s porch before 8 pm and were waiting for keys rather than force entry. They complied with the rule. State v. Harris, 2015-Ohio-2480, 2015 Ohio App. LEXIS … Continue reading
AK: Midnight “trooper sniff” on the curtilage near def’s front door violated Jardines
Alaska State Troopers creeped down defendant’s driveway in a police car to the front of her house at midnight for a “trooper sniff,” smelling marijuana. This entry onto the curtilage was even more intrusive than Jardines because it was at … Continue reading
CA8: Where driveway encircles house and car parked in back, curtilage not violated
Officers did not violate the curtilage by driving down a road looking for somebody when they came upon a house with a driveway that went around it, and the only car was parked behind it. They parked there and encountered … Continue reading
WY: No prejudice from this violation of nighttime search rule; GFE also applies
The state violated the nighttime search rule by executing this search warrant at 10:18 pm rather than before 10 pm, but the officers claimed not to know the exact time. There was no showing in the search warrant papers for … Continue reading
