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- FL3: Cell phone dump in civil case denied; no showing of need
- E.D.Va.: Must plead prejudice when delay of a cell phone SW is alleged
- CA: Avoiding the police in a high crime area isn’t RS
- CA7: Jail officials holding plaintiff under a valid court order aren’t liable for not releasing him sooner after a sentencing error
- Volokh: Do Fourth Amendment Protections Change When Property Is Moved?
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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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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)
Website design by Wally Waller, Little Rock 
Monthly Archives: April 2015
Nat’l Law Rev.: Florida Governor Settles Litigation Over Drug Testing of State Workers
Nat’l Law Rev.: Florida Governor Settles Litigation Over Drug Testing of State Workers by Roger S. Kaplan: Litigation that began over a 2011 Executive Order (11-58) by Florida Governor Rick Scott requiring drug tests for all prospective employees and random … Continue reading
The Atlantic: What Good Is a Video You Can’t See?
The Atlantic: What Good Is a Video You Can’t See? by Robinson Meyer: Police body cameras are meant to be a tool of public accountability. But even experts can’t agree on how to make sure that happens.
NY Times: Downside of Police Body Cameras: Your Arrest Hits YouTube
NY Times: Downside of Police Body Cameras: Your Arrest Hits YouTube by Timothy Williams: Police departments around the country have been moving with unusual speed to equip officers with body cameras to film their often edgy encounters with the public. … Continue reading
Brietbart: Texas bill: Search warrant required before body cavity search at traffic stop
Brietbart: Texas bill: Search warrant required before body cavity search at traffic stop by Lana Shadwick: A bill is set to go before the Texas State House of Representatives Monday that would protect individuals from body cavity searches by peace … Continue reading
Inquisitr: Georgia County Will Randomly Drug Test Students
Inquisitr: Georgia County Will Randomly Drug Test Students: A Georgia county will randomly drug test students beginning in the 2015-2016 school year. The move has many asking if it is a constitutional violation. Based on previous Supreme Court rulings, though, … Continue reading
CA9: Once criminal proceedings are over, the original search isn’t an issue in Rule 41(g) proceedings for return of property
Defendant’s Rule 41(g) motion was granted in part and denied in part. The district court did not err in refusing to reconsider the original search question. “[I]n the context of Rule 41, that after criminal proceedings are completed, ‘the legality … Continue reading
W.D.Ky.: Text messages to 11 year old boy for sex was justification for warrantless seizure of cell phone
The seizure of defendant’s cell phone incident to his arrest was reasonable. Defendant was accused by an 11 year old boy of sexual conduct on Fort Campbell, and the FBI and Army CID investigated and got enough information to have … Continue reading
KCCI8: GOP presidential contenders talk social issues in Iowa
KCCI8: GOP presidential contenders talk social issues in Iowa by Steffi Lee: “You’ve got to run somebody who is different. You’ve got to run somebody who says you know what, not only are we the party of the second amendment, … Continue reading
TX14: Driving slow on low tires in the middle of nowhere justified community caretaking stop
Defendant’s stop was objectively reasonable under the community caretaking function. He was driving 10 in 25 mph zone with seriously deflated tires causing the car to wobble on the highway, and it was in the middle of nowhere. Lollie v. … Continue reading
FL4: Parole searches not limited by time of day, but must be reasonable; this one at 5:45 am with 8 officers
Florida case law long has recognized warrantless probation and parole searches on reasonable suspicion, and statute is not required. Here, there wasn’t even a parole condition to submit to parole searches. This search started at 5:45 am and was reasonable, … Continue reading
D.Mont.: 27 minute stop not overlong on these facts; applying Rodriguez
Two days after Rodriguez, the District of Montana applies it finding a 27 minute traffic stop reasonable under the facts of that case. United States v. Iturbe-Gonzalez, 2015 U.S. Dist. LEXIS 53536 (D.Mont. April 23, 2015):
KS declines to apply exclusionary rule to city officer’s extraterritorial arrest
The Kansas Supreme Court refuses in this case to apply the exclusionary rule to an extraterritorial police operation that resulted in defendant’s arrest, understanding why the trial court suppressed. The legislature modified the common law rule of territoriality somewhat, but … Continue reading
CA5 en banc: Border Patrol agent’s shooting of unarmed teenager across border gets qualified immunity
On en banc review, the panel decision is reinstated. The U.S. government has sovereign immunity for the shooting death of an armed Mexican teenager standing in Mexico shot from the U.S. at Ciudad Juarez, across the border from El Paso. … Continue reading
E.D.N.C.: Court doesn’t credit that officer smelled marijuana
Court doesn’t credit that officer smelled marijuana and suppresses search for lack of probable cause to search the person. Video of stop and car search was instrumental. United States v. Price, 2015 U.S. Dist. LEXIS 52734 (E.D. N.C. April 22, … Continue reading
PA: Hot pursuit of a drug dealer to his door permitted warrantless entry when door answered
Officers observed defendant involved in a drug deal and then pursued him to his house and knocked and then entered on answer. This was not a police created exigency. The court engages in a lengthy state constitutional and historical review … Continue reading
Treatise on sale until 4/26
Lexis Bookstore is having a sale through Sunday, but you probably have to ask them because it’s really for titles over $500. From the publisher: Search and Seizure, Fifth Edition – List $473, Your Price $402 A Savings of $70 … Continue reading
TX2: Defense argument at “Catch-22”: If he lived there, arrest warrant good enough to enter; if not, other person consented
Defendant’s argument about the place entered being his home was a “Catch-22” for him. If he lived there, the arrest warrant authorized entry to get him, and the plain view was valid. If he didn’t, the other occupant had authority … Continue reading
Marshall Project: Why Cops Aren’t Ready for Their Close-Up
Marshall Project: Why Cops Aren’t Ready for Their Close-Up by Alysia Santo: A police officer makes the case for keeping your distance. In March, State Rep. Jason Villalba (R-Texas), filed a bill that would have made it a misdemeanor for … Continue reading
SCOTUSBlog: Argument preview: Pre-trial detainees and excessive force in jail
SCOTUSBlog: Argument preview: Pre-trial detainees and excessive force in jail by Richard M. Re: Kingsley v. Hendrickson will be the Court’s next word on the law of excessive force. The case focuses on the relatively narrow question of what should … Continue reading