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- D.Mont.: 30-day delay in getting SW for seized storage building not unreasonable
- E.D.Cal.: Smell of MJ still PC in a California National Park even though not under state law
- CA10 dissent: Bivens on its last legs
- VA: Consent to look in backpack permitted search of pill bottle
- NY3: Warrantless arrest body cavity search was unreasonable
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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)
--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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Monthly Archives: November 2014
TN: No relief under plain error for McLaughlin error of no PC determination in 48 hours because of muddled facts
In a case that started in 1997 and was the subject of a successful habeas petition, defendant is not entitled to relief for a McLaughlin error where he was held more than 48 hours without a probable cause determination and … Continue reading
N.D.Ind.: “No harm, no foul” on no exclusion for illegal cell phone search mentioned
An officer involved in the case conducted an illegal warrantless, albeit limited, search of defendant’s cell phone, realized it was wrong, and then stopped and didn’t tell the case agent or anyone else what he’d done. Later, he “came clean” … Continue reading
LA Times: Editorial: ACLU offers a smart safeguard for using surveillance technology [link to pdf added]
LA Times: Editorial: ACLU offers a smart safeguard for using surveillance technology The American Civil Liberties Union of California has produced a guide for communities on how to evaluate surveillance proposals and how to put in place security and civil … Continue reading
E.D.Mich.: Generally, absent owner of a car loaned to somebody else doesn’t have standing to challenge the stop and then search of the car
Generally, the absent owner of a car loaned to somebody else doesn’t have standing to challenge the stop and then search of the car. United States v. Gonzalez, 2014 U.S. Dist. LEXIS 162121 (E.D. Mich. November 19, 2014). Because of … Continue reading
D.Alaska: Stop of “white sedan” 3-4 blocks from shooting within seconds of report was RS; occupants’ description not required
The description of a car involved in a shooting doesn’t need to, and usually can’t, include a description of the occupants. Here, a radio report was put out about a white sedan being involved in a shooting at a particular … Continue reading
WA: Probation search of iPod without RS was unconstitutional
A probation search of an iPod without a warrant was improper under state law. The statute doesn’t help the court, but the department’s rules do, and they limit searches to a potential offense being investigated and this was not. Thus, … Continue reading
LA2: State loses a cocaine search issue, apparently by not arguing all alternative grounds
A car was pulled over and two men fled from it. A third in the back seat was asleep or passed out, and he was awakened by officers banging on the windows. When he awoke, he refused to show his … Continue reading
HuffPo: Apparent Drug Deal Goes Down During Live Local News Broadcast
HuffPo: Apparent Drug Deal Goes Down During Live Local News Broadcast by Jackson Connor
The Hill: [NC] Judge unseals info on secret cellphone spying
The Hill: Judge unseals info on secret cellphone spying by Cory Bennett: A judge Friday unsealed a trove of court documents that could shed light on a secret cellphone tracking program used by police nationwide. The judge in Charlotte, N.C., … Continue reading
NYTimes: Activists Wield Search Data to Challenge and Change Police Policy
NYTimes: Activists Wield Search Data to Challenge and Change Police Policy by Richard Oppel, Jr.: The use of public data on stop and search is an alternative tactic as communities who say they are unfairly targeted seek to rewrite their … Continue reading
Reason.com: USA FREEDOM and Rand Paul
Reason.com: USA FREEDOM and Rand Paul by Ronald Bailey: Civil libertarians are disappointed by the Kentucky senator’s vote against debate on NSA reform legislation. In June 2013, Sen. Rand Paul (R-Ky.) introduced the Fourth Amendment Restoration Act, a bill declaring … Continue reading
IN: “No Trespassing” sign and cable across driveway defined curtilage under state constitution; entry required warrant
“No Trespassing” signs used to be not determinative of curtilage. It’s apparent they are becoming so. Here, the defendant had a cable across the driveway, a “No Trespassing” sign, and a surveillance camera. The police were not in hot pursuit … Continue reading
NC: Excessive force as an unreasonable search has to be raised in trial court first
During a traffic stop, reasonable suspicion was clearly developing, and defendant had something in his hand while denying it. Multiple requests to open his hand were refused, and, fearing a weapon, the officer ultimately had to take defendant down to … Continue reading
D.Haw.: Search incident does not have to be exactly contemporaneous with arrest
The search incident of a bag in the defendant’s hand after he arrived in Hawai’i from Oakland was with probable cause, and it did not have to be immediately contemporaneous with the arrest to be valid. Here, exigency justified dealing … Continue reading
Woodstock Times: Sheriff suspends warrant checks at Social Services
Woodstock Times: Sheriff suspends warrant checks at Social Services by Jesse J. Smith: Ulster County Sheriff Paul VanBlarcum said this week that he will suspend a controversial policy of running warrant checks on visitors to the county’s Department of Social … Continue reading
MotherJones: The FBI Is Very Excited About This Machine That Can Scan Your DNA in 90 Minutes
MotherJones: The FBI Is Very Excited About This Machine That Can Scan Your DNA in 90 Minutes by Shane Bauer: Rapid DNA technology makes it easier than ever to grab and store your genetic profile. G-men, cops, and Homeland Security … Continue reading
TechDirt: FISA Judge To Yahoo: If US Citizens Don’t Know They’re Being Surveilled, There’s No Harm
TechDirt: FISA Judge To Yahoo: If US Citizens Don’t Know They’re Being Surveilled, There’s No Harm by Tim Cushing: A legal battle between Yahoo and the government over the Protect America Act took place in 2008, but details (forced from … Continue reading