- D.Nev.: Affidavits for SWs don’t have to prove the underlying crimes
- D.V.I.: Flyover of curtilage from navigable airspace was reasonable
- NJ: Disputes in the facts on appeal show trial court should have held a hearing
- NY: Second SW for phone a year later after first SW failed to show PC wasn’t timely
- GA: Not objecting to mention of “probation” search at trial was not IAC
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
online since Feb. 24, 2003 Approx. 350,000 visits (non-robot) since 2012 Approx. 45,000 posts since 2003 (25,700+ on WordPress as of 12/31/22)
Fourth Amendment cases,
citations, and links
Latest Slip Opinions:
U.S. Supreme Court (Home)
Federal Appellate Courts Opinions
FDsys, many district courts, other federal courts
Military Courts: C.A.A.F., Army, AF, N-M, CG, SF
State courts (and some USDC opinions)
Advanced Google Scholar
Google search tips
LII State Appellate Courts
LexisONE free caselaw
Findlaw Free Opinions
To search Search and Seizure on Lexis.com $
S. Ct. Docket
Solicitor General's site
Briefs online (but no amicus briefs)
Oyez Project (NWU)
"On the Docket"–Medill
S.Ct. Monitor: Law.com
S.Ct. Com't'ry: Law.com
General (many free):
Google Scholar | Google
LexisOne Legal Website Directory
Lexis.com (criminal law/ 4th Amd) $
Findlaw.com (4th Amd)
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
Electronic Frontier Foundation
NACDL’s Domestic Drone Information Center
Electronic Privacy Information Center
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."
“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)
Website design by Wally Waller, Little Rock
Category Archives: Pretext
W.D.Pa.: Car parked in driveway was not on protected curtilage
Defendant’s car parked on his driveway was not on the curtilage. It was close to the house, but there was no enclosure or carport like Collins. United States v. Moses, 2023 U.S. Dist. LEXIS 84247 (W.D. Pa. May 12, 2023). … Continue reading
NYJL: Getting Real in New York Courts: A Behavioral Realist Approach to Search and Seizure Law
NYJL: Getting Real in New York Courts: A Behavioral Realist Approach to Search and Seizure Law (“A discussion of the proposed application of the ‘behavioral realism’ approach to New York’s search and seizure law to provide a check against racist … Continue reading
OH8: Not following up on obvious window tint violation didn’t make stop for that unreasonable
The officer reasonably believed the car’s tint violated the law because he literally could not see in it. The fact he didn’t follow up more on that doesn’t make it pretext. State v. McDonald, 2023-Ohio-464, 2023 Ohio App. LEXIS 444 … Continue reading
NJ: Dispatcher’s mistake in BOLO on race of bank robber was attributable to officers and this “implicit bias” can make def’s case of pretext
NJ recognizes pretext, and the dispatcher’s wrong assumption that a bank robber was Black when race was never mentioned is attributable to the officer on the street making the stop. This mistake with “implicit bias” can be a basis for … Continue reading
D.Haw.: Specific exigency not required for automobile exception search
Defendant’s car could be searched under the automobile exception while it was parked at his mother’s condo. Exigency isn’t specifically required. United States v. Chan, 2023 U.S. Dist. LEXIS 14062 (D. Haw. Jan. 27, 2023).* Even if defendant’s otherwise objectively … Continue reading
W.D.Ky.: Allowing theft from house after a search had a state remedy, so no § 1983 remedy
Plaintiff alleged the Sheriff’s Office, after a search, gave the keys to his place to a convicted felon who stole from him. He has a state remedy, not a § 1983 remedy. Stone v. Taylor Cty. Sheriff Dep’t, 2023 U.S. … Continue reading
IA: “Driving while black” rejected because stop was objectively reasonable
Defendant sought to cast his stop as pretextual and “driving while black,” but it’s rejected because the stop was objectively reasonable. “We conclude that while the officer’s actions placed Cyrus in a situation with an unarguable ‘moral and instinctive pressure[ … Continue reading
The Guardian: California sheriff’s office stops Black drivers five times more often than white people, data shows
The Guardian: California sheriff’s office stops Black drivers five times more often than white people, data shows by Sam Levin (“A new report says sheriffs’ patrols spend more time conducting racially biased stops than they do responding to calls for … Continue reading
OH6: Consent to search cell phone obtained by telling def it would get his phone back sooner was involuntary
Defendant’s consent to search his phone was merely acquiescing to a claim of lawful authority because it was told if he consented he could get it back faster. State v. Seem, 2022-Ohio-3507, 2022 Ohio App. LEXIS 3314 (6th Dist. Sep. … Continue reading
CA8: Two judges question case law on pretext and “driving while black”
In denying a petition for rehearing en banc, two of eleven judges of the Eighth Circuit question when pretext can be raised. Saunders v. Thies, 2022 U.S. App. LEXIS 25527 (8th Cir. Sep. 12, 2022), Grasz and Smith dissenting from … Continue reading
S.D.Fla.: Threats against LEOs involved in execution of SW requires affidavit remain sealed
Public threats against FBI agents involved in the search requires leaving the affidavit for the search warrant under seal. In re Warrant, 2022 U.S. Dist. LEXIS 150388 (S.D. Fla. Aug. 22, 2022). Defendant’s traffic stop was factually based and not … Continue reading
N.D.Ind.: USMJ’s finding stop was racially motivated is irrelevant and rejected
The USMJ’s finding that the stop was racially motivated is rejected. Reviewing the dashcam video, the stop was clearly justified for a traffic offense, and that’s all that was legally required. United States v. Crawford, 2022 U.S. Dist. LEXIS 120634 … Continue reading
Cal.1: Superior Court improperly dismissed pretextual stop claim under California Racial Justice Act of 2020
Defendant here gets reconsideration of his discovery request over an alleged pretextual stop under the California Racial Justice Act of 2020 (Stats. 2020, ch. 317, § 1). He gets over the threshold for a preliminary showing. The trial court impermissibly … Continue reading
D.Neb.: Execution of writ of execution a reasonable seizure
Execution of a facially valid writ of execution is a reasonable seizure. Coonts v. Potts, 316 F.3d 745, 750-51 (8th Cir. 2003). Knight v. City of Omaha, 2022 U.S. Dist. LEXIS 41932 (D.Neb. Mar. 9, 2022). “In sum, Price’s status … Continue reading
FL4: Suspicionless probation search condition violates state law
The probation search condition permitting one without reasonable suspicion violates state law. Remanded to strike it from probation terms. Bowman v. State, 2022 Fla. App. LEXIS 1611 (Fla. 4th DCA Mar. 9, 2022). Window tinting stop: “Moreover, because Trooper Otterson … Continue reading
CO: While trial court erred in considering officers’ subjective intent, there still wasn’t RS
“We conclude that while the trial court erred in considering the officers’ subjective intent in effectuating the seizure, it was nonetheless correct that the officers lacked reasonable and articulable suspicion to detain Brown. Accordingly, we affirm the trial court’s order … Continue reading
NC: Inventory of a wrecked and apparently abandoned vehicle was reasonable
“In either event, the officers were justified in searching the wrecked vehicle to get it out of the ditch for an inventory or for officer safety. Officers searched the vehicle in an effort to find the purported driver’s name or … Continue reading
LATimes: New limits on ‘pretextual stops’ by LAPD officers approved, riling police union
LATimes: New limits on ‘pretextual stops’ by LAPD officers approved, riling police union by Kevin Rector:
W.D.Wash.: Extensive surveillance of def showed PC
The government’s extensive surveillance evidence of defendant showed probable cause for the warrant. United States v. Alvarez-Quinonez, 2022 U.S. Dist. LEXIS 26292 (W.D.Wash. Feb. 14, 2022).* Defendant’s claim of racial profiling pleads no facts and is denied. He can, however, … Continue reading
N.D.Ill.: There can’t be a pretextual SW for a plain view; it’s objectively reasonable or not
Court rejects claim that search warrant could be pretextual to seize something else in plain view. That’s a foray into subjective intent the court won’t do. United States v. Contreras, 2021 U.S. Dist. LEXIS 242185 (N.D.Ill. Dec. 20, 2021):