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Recent Posts
- 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)
--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)
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Section 1983 Blog -
"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: October 2015
D.Mass.: Court order for CSLI under SCA not “clearly unconstitutional”
A court order on probable cause for CSLI information under the SCA was not clearly unconstitutional and good faith would apply in any event. [It it’s issued on probable cause, what’s the problem?] United States v. Letellier, 2015 U.S. Dist. … Continue reading
S.D.W.Va.: Heroin and other drug warrant was not overbroad despite boilerplate language
A search warrant for heroin that was otherwise boilerplate as to other controlled substances and all the things that officers always want to look for in drug cases was not overbroad. And good faith still applies. United States v. McCarrall, … Continue reading
CA11: Overbreadth challenge fails for computers on wireless at a fire station
Defendant was a fireman who was suspected of actively downloading child pornography via a P2P connection at work. Certain representations in the affidavit about the investigators trying to pickup the wireless signal outside the station and who was on duty … Continue reading
WaPo: Volokh Conspiracy: Helicopter (and drone?) surveillance and the Fourth Amendment
WaPo: Volokh Conspiracy: Helicopter (and drone?) surveillance and the Fourth Amendment by Eugene Volokh: The Supreme Court has held that observing and photographing people’s homes and surrounding areas from an airplane, flying at 1,000 feet, doesn’t violate the Fourth Amendment … Continue reading
Verge.com: Homeland Security will now get warrants for Stingray surveillance
Verge.com: Homeland Security will now get warrants for Stingray surveillance by Russell Brandom: The Department of Homeland Security has a new, more constitutional policy for cell-site simulators, also known as Stingrays. Rolled out today, the new policy follows in the … Continue reading
CA10: Even if SW was overbroad, it was approved by DA before issuing magistrate got it, and they could reasonably rely on it
Even if a search warrant was overbroad in describing items to be seized with the requisite particularity, police officers were improperly denied qualified immunity since the warrant was approved by a district attorney and issued by a detached and neutral … Continue reading
Atlantic: The NYPD Is Using Mobile X-Ray Vans to Spy on Unknown Targets
Atlantic: The NYPD Is Using Mobile X-Ray Vans to Spy on Unknown Targets by Conor Friedersdorf: New York City won’t reveal how often cops bombard places, vehicles, or people with radiation—or if there are health risks for residents. Dystopian truth … Continue reading
NM: Police helicopter flyover at 50-100′ disrupted and damaged the property and scared the occupants and violated curtilage
A police helicopter flyover at 50-100′ disrupted and damaged the property and scared the occupants. Therefore, it violated the curtilage under the Fourth Amendment. Thus, the state constitutional issue does not have to be decided. State v. Davis, 2015 N.M. … Continue reading
OH2: Looking under an air mattress for a person was valid in a protective sweep
Officers in hot pursuit chased two men to a house, and the door was locked. They “knocked” and got no answer, retrieved a battering ram, and broke in. A protective sweep of the house revealed plenty of drugs in plain … Continue reading
S.D.Iowa: Looking for gun serial number exceeded scope of protective sweep and is suppressed
DHS officers executed a search warrant on an empty house looking for a 2×4″ object (an I-551 stamp). They didn’t find it. In the course of the search, they opened an Xbox box in a closet and found a handgun. … Continue reading
GA: No factual support for police conclusion a protective sweep was justified
The evidence here does not support the trial court’s findings that a protective sweep was justified. Two officers entered the house after defendant and he was subdued, and inside there was the defendant and two others. There was no suggestion … Continue reading
N.D.Cal.: Defendant’s wife’s turning over his computer hard drive to police was a private search
Defendant was out of town when his wife found child pornography on the computer he let her regularly use. She called the police and turned over the hard drive, and they got a search warrant for a forensic examination. He … Continue reading
CA2: Def surprised at trial with unknown alleged consent search gets a post-trial evidentiary hearing on it
Defendant was surprised at trial with testimony that defendant’s wife had consented to a search of his computer prior to the search warrant issuing. Defendant moved for a mistrial. The FBI agent involved in that search was from Alabama and … Continue reading
OH9: No standing in a package of drugs shipped to house in boyfriend’s name
A package containing cocaine was shipped to defendant’s house in the name of her boyfriend. She had no standing in the package because her name wasn’t on it. State v. Padilla, 2015-Ohio-4220, 2015 Ohio App. LEXIS 4112 (9th Dist. Oct. … Continue reading
TX2: Passenger puking in car was not an exigent circumstance; she was not in danger
The fact defendant’s passenger had puked in the car was not an exigency requiring police action. There was no evidence she was a danger to herself or others. They were already near hospitals. Byram v. State, 2015 Tex. App. LEXIS … Continue reading
FL3: Neighbor’s call of a broken back window brought police who suspected burglary; entry was justified
Defendant’s neighbor called the police because of a broken back window strongly suggesting a burglary. An officer arrived with a dog, and when no one answered, he sent in the dog. Following the dog, no people were found but the … Continue reading
OH9: If the drug dog gets there before the paperwork is done, the sniff is fine
Defendant’s stop for a lane change violation was valid. A drug dog officer arrived before the paperwork was processed, so the stop was not continued for that. [So, as long as the drug dog arrives promptly, a dog sniff of … Continue reading
Wired: Report: Feds Will Require All Drones to Be Registered
Wired: Report: Feds Will Require All Drones to Be Registered by Michael Calore: We should expect the new regulations to be made public Monday, the report says. This will enable the new rules to be put into place before the … Continue reading
AP (via AOL): Florida woman streamed live video of drunken driving
AP (via AOL): Florida woman streamed live video of drunken driving: Authorities say 911 calls from concerned viewers led to the arrest of a Florida woman who was streaming live video of herself while driving drunk. Lakeland police report 23-year-old … Continue reading
CA10: Officers get qualified immunity for SW that was not completely without particularity
In this § 1983 case over the particularity of a search warrant over stolen cars on his property, the officers had qualified immunity. The warrant was not so lacking in particularity that a reasonable officer couldn’t rely on it. Rathbun … Continue reading