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- D.N.M.: DEA’s failure to make a detailed inventory in violation of policy doesn’t require exclusion of evidence
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- AR: RS def rented a hotel room was sufficient for search waiver; PC not required
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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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--Federal Statutes Governing Wiretapping and Electronic Eavesdropping (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: April 2015
W.D.Mo.: Officer’s subjective belief of “reasonable mistake of law” irrelevant under Heien
The stop was based on a municipal ordinance that prohibited obstructions “upon” the windshield or windows. The government relied on reasonable mistake of law under Heien v. North Carolina, but the court disagrees. An air freshener was not “upon” and … Continue reading
IA: Where owner of car was a woman with a revoked DL, the officer didn’t see it was a man driving until he got to the driver’s window
The officer ran the LPN of the vehicle in front of him, and the owner, a woman, came back with a revoked DL. He stopped the car. When he got to the driver’s door, he saw a man, and then … Continue reading
D.Md.: A cell phone found on a drug dealer is virtually per se probable cause there is evidence to be found on it; it’s a “tool of the trade”
A cell phone found on a drug dealer is virtually per se probable cause there is evidence to be found on it. Thus, there was PC for a warrant and nexus to the crime. United States v. Fisher, 2015 U.S. … Continue reading
WaPo: In Fourth Amendment cases, it’s a toss-up
WaPo: In Fourth Amendment cases, it’s a toss-up by Orin Kerr: A lot of people think that today’s Supreme Court is conservative and pro-government in Fourth Amendment cases. It can be hard to analyze those views because they often hinge … Continue reading
Columbus Dispatch: Supreme Court ruling on drug-dog searches should have little effect in Ohio
Columbus Dispatch: Supreme Court ruling on drug-dog searches should have little effect in Ohio by Alan Johnson: Officials with the Ohio State Highway Patrol and Columbus police said they already follow a procedure in which officers must have a reasonable … Continue reading
ComputerWorld: The new legislation would extend the telephone records collection section of the law for five years
ComputerWorld: The new legislation would extend the telephone records collection section of the law for five years by Grant Gross: Senate Majority Leader Mitch McConnell introduced a bill that would extend the surveillance provisions of the Patriot Act until 2020, … Continue reading
WaPo: Explaining Heien and Rodriguez
WaPo: Explaining Heien and Rodriguez by Orin Kerr: Over at Slate, Mark Joseph Stern has an article trying to explain the Justices’ votes in Rodriguez v. United States, yesterday’s Fourth Amendment case on the length of traffic stops. Stern focuses … Continue reading
C.D.Cal.: Merely hiding something in a car doesn’t create standing
Defendant was accused of breaking into USPS mailboxes and stealing mail. He failed to show standing in the car he was stopped in. He claimed to own it, having just bought it from a guy whose name he didn’t know, … Continue reading
LA Times: Report: Small L.A. County cities seize large amounts in civil forfeitures
LA Times: Report: Small L.A. County cities seize large amounts in civil forfeitures by Victoria Kim: A handful of small Los Angeles County cities seize large amounts of cash and cars using a controversial federal law that allows them to … Continue reading
CA11: Maybe the first Rodriguez casualty and decided the same day
This case decided the same day as Rodriguez should be now be reversed. In this cryptic opinion, a traffic stop appears to have led to the use of a drug dog for no apparent reason, and the dog alerted. No … Continue reading
D.S.C.: Nexus shown simply by drug dealer going home after the sale
The affidavit here was short, but not “bare bones.” Also, nexus is shown because defendant left the drug deal and went home. United States v. Hooks, 2014 U.S. Dist. LEXIS 183573 (D.S.C. April 21, 2014). 2255 petitioner did not show … Continue reading
CO: Unconscious def’s impending treatment at hospital was exigency for warrantless blood draw
“In this interlocutory appeal, the People seek review of the trial court’s order suppressing the results of a blood draw taken from the defendant. The trial court found that a warrant was required before the police could order a blood … Continue reading
CA9: Witness’s later testimony revealed doubt on private search; remanded for that and whether there was a Brady violation
This case arose from a mortgage fraud indictment and trial where a combined Brady/Fourth Amendment issue arose after the trial. The government’s lead witness in procuring evidence testified after the trial that the defendant’s records were procured at the request … Continue reading
NACDL adopts mail cover surveillance report
Resolution of the Board of Directors of the National Association of Criminal Defense Lawyers Concerning Mail Cover Surveillance adopted at Spring Meeting, April 19, 2015: WHEREAS, mail cover surveillance is the investigative practice of recording the information listed on the … Continue reading
Baltimore Sun: Baltimore judge allows police use of Stingray phone tracking in murder case
Baltimore Sun: Baltimore judge allows police use of Stingray phone tracking in murder case by Justin Fenton: A city judge turned back a challenge Monday to the Baltimore Police Department’s use of a controversial cellphone surveillance tool in a murder … Continue reading
Big win for individual liberty: SCOTUS: Bringing out the drug dog as a matter of course during a traffic stop is unreasonable; CA8’s “de minimus” extension of stop rule violates Fourth Amendment
Rodriguez v. United States, 2015 U.S. LEXIS 2807 (April 21, 2015). The syllabus: Officer Struble, a K–9 officer, stopped petitioner Rodriguez for driving on a highway shoulder, a violation of Nebraska law. After Struble attended to everything relating to the … Continue reading