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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)
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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: March 2015
D.S.D.: Passenger’s unexplained flight from car was abandonment of his backpack
In a traffic stop, the passenger fled for no apparent reason. The backpack he left behind was abandoned property. Officers waited for his return before searching it. United States v. Nowak, 2015 U.S. Dist. LEXIS 35351 (D.S.D. March 19, 2015), … Continue reading
Fusion: Is NYC’s new gunshot detection system recording private conversations?
Fusion: Is NYC’s new gunshot detection system recording private conversations? by Daniel Rivero: As Tyrone Lyles lay dying from a gunshot wound on an East Oakland street in 2007, he let out a few last words that would ultimately help … Continue reading
M.D.La.: Telling employees they couldn’t leave during a regulatory inspection was a seizure of their person
In a regulatory inspection, “An order not to leave the business premises for two hours can reasonably be understood to constitute a detention as well as a seizure. Although the inspection was conducted according to regulatory authority, the statutory provision … Continue reading
OH4: A frisk for weapons is limited; the video here shows a search for drugs with officers digging in his pockets
A frisk for weapons is limited; the video here shows a search for drugs with officers digging in his pockets. The search wasn’t for weapons, and his consent was invalid. State v. Debrossard, 2015-Ohio-1054, 2015 Ohio App. LEXIS 989 (4th … Continue reading
TX11: Odor of alcohol alone is not probable cause
Odor of alcohol alone is not probable cause. “Trooper Johnson simply was not asked about any physical observations that he made of Appellant’s eyes, speech, or movement; nor was he asked what effect, if any, these observations may have had … Continue reading
IL: Officer staying on porch after completion of business was unauthorized, and def couldn’t be conviction of obstruction after that
Defendant’s obstructing a peace officer conviction had to be reversed because, while an officer could initially enter defendant’s porch, once he found no evidence of a crime, staying there was an unauthorized act which defendant could lawfully obstruct. People v. … Continue reading
SCOTUSBlog: Argument preview: Police and disability rights
SCOTUSBlog: Argument preview: Police and disability rights (Argued March 23) by Lyle Denniston: Background Difficult issues of police policy and humane concern confront officers when they attempt to subdue a mentally disabled person whom they know is armed and has … Continue reading
Int’t Business Times: Rule 41 Change Could Allow FBI To Get Warrants To Remotely Search Suspects’ Computers Without Notice
Int’t Business Times: Rule 41 Change Could Allow FBI To Get Warrants To Remotely Search Suspects’ Computers Without Notice by Julia Glum: The Department of Justice recently edged closer to a rule change that would allow the FBI to track … Continue reading
GA: Once the officer gives back the license and ticket, continued questioning unreasonably prolongs the stop
Once the officer gives back the license and ticket, continued questioning unreasonably prolongs the stop. Duncan v. State, 2015 Ga. App. LEXIS 134 (March 18, 2015):
A.F. Ct.Crim.App.: After defendant lawyered up, asking him for his cell phone password violated the Sixth Amendment
After defendant lawyered up, asking him for his cell phone password violated the Sixth Amendment, and the statement giving the password must be suppressed. United States v. Bondo, 2015 CCA LEXIS 89 (A.F. Ct. Crim. App. March 18, 2015) (unpublished):
GA: Consent to DNA paternity test for sex with 12 year old didn’t bar use of test in criminal case
Defendant’s consent to a DNA test for a paternity test for impregnating a 12 year old didn’t preclude using the evidence in a criminal investigation for having sex with her. Defendant had to know that was possible. Andrews v. State, … Continue reading
E.D.Ark.: Use of a SWAT team to execute a document search warrant was not so unreasonable that it made the entire search unreasonable
Use of a SWAT team to execute a document search warrant was not so unreasonable that it made the entire search unreasonable. Also, the alleged overseizure of records was not clearly unreasonable. Mountain Pure LLC v. Roberts, 2015 U.S. Dist. … Continue reading
CA5: Suppression hearing not required when def doesn’t make a showing for one
On the face of the papers, the motion to suppress and the government’s response, defendant doesn’t show an issue for an evidentiary hearing. Denial of a suppression hearing is governed by the abuse of discretion standard, and there was no … Continue reading
Ars Technica: Is a lifetime of involuntary GPS monitoring constitutional?
Ars Technica: Is a lifetime of involuntary GPS monitoring constitutional? by David Kravets: When the Supreme Court ruled in 2012 that affixing GPS devices to vehicles to track their every move without court warrants was an unconstitutional trespass, the outcome … Continue reading
KPBS: Border Agency Brings Face Scanning To Otay Mesa
KPBS (San Diego State University): Border Agency Brings Face Scanning To Otay Mesa by David Wagner: The next time you walk across the Mexican border, an agent might ask to scan your face. In a pilot program rolling out this … Continue reading
CA6: Prolonged Tasering known to be excessive force that causes brain injury
Tasering plaintiff’s ward twice for 5 and 21 seconds violated clearly established law and created an unnecessary risk of the brain injury he suffered. It was clear to the officer that applying a Taser for 15 seconds or more was … Continue reading
Upworthy: Cop doesn’t understand how law works, arrests guy who does for something totally legal
Upworthy: Cop doesn’t understand how law works, arrests guy who does for something totally legal by Adam Mordecai: That awkward moment when your average citizen knows more about the law than the police do.
CA8: No standing in co-def’s CSLI
One defendant has no standing to challenge CSLI obtained from codefendants’ phones in real time under a court order. A wiretap and a CSLI order can be combined in one application. United States v. Turner, 2015 U.S. App. LEXIS 4295 … Continue reading
WaPo: ACLU sues for details of TSA’s controversial ‘behavioral detection’ program
WaPo: ACLU sues for details of TSA’s controversial ‘behavioral detection’ program by Josh Hicks: A prominent civil rights group on Thursday filed a lawsuit seeking details about the controversial airport-security practice known as ‘behavioral detection,’ which critics suspect of leading … Continue reading