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- CA5: Deficient privilege log after records search was waiver
- E.D.Ky.: When court can’t tell the dog alerted, motion to suppress granted
- OH1: A malnourished child isn’t exigency for an infant
- E.D.Pa.: Mandamus doesn’t lie to unseal SW papers
- D.Me.: Looking around house when allegedly “freezing” it was an illegal search
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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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--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: December 2015
Good faith as a part of inventory searches? In Ohio since at least 1992. Coming to a court near you. Is good faith being subsumed into the “reasonableness” inquiry?
In 2009’s Herring, “good faith” is referred to in the majority opinion seven times as a reason for not applying the exclusionary rule. There it was a search incident to a recalled arrest warrant, a Warrantless search. In Ohio, at … Continue reading
D.Ariz.: Defs’ motion for summary judgment denied in DOJ case v. Maricopa County for discrimination against Hispanics
In a wide-ranging opinion (just released on Lexis) on Sheriff Joe Arpaio’s actions as Sheriff of Maricopa County, Arizona, issue preclusion from a prior suit against the County would be applied (Ortega-Melendres v. Arpaio, 836 F. Supp. 2d 959, 969 … Continue reading
SC: EFF, ACLU amicus brief advocates warrants, probable cause for cell-simulator use
SC: EFF, ACLU amicus brief advocates warrants, probable cause for cell-simulator use by Teri Robinson: The Electronic Frontier Foundation (EFF) joined forces with the American Civil Liberties Union (ACLU) and the ACLU of Maryland to file an amicus brief Tuesday … Continue reading
MA: Detailed description of car involved in two robberies near in time and location to when it was seen was PC
The officer had a wealth of information for probable cause to stop and search defendant’s car for two robberies. The fact that six hours elapsed between the two didn’t make the first one stale. Defendant’s argument the officers acted in … Continue reading
D.Neb.: Protective sweep was for evidence not persons, but there was an independent basis for the SW
The protective sweep in this case was not a look for persons but evidence, and the body cam audio supports that conclusion. However, there was an independent basis for a search warrant, and the motion to suppress guns found in … Continue reading
WaPo: Radley Balko’s ‘The Watch’ Blog – Federal judge: Drinking tea, shopping at a gardening store is probable cause for a SWAT raid on your home
WaPo: Radley Balko’s ‘The Watch’ Blog – Federal judge: Drinking tea, shopping at a gardening store is probable cause for a SWAT raid on your home: Yes, merely shopping at a gardening store could make you the target of a … Continue reading
PA: Judge disciplined for not being “neutral and detached” in issuing SW, arrest warrant, and OP at request of friend against husband
Judge who issued a search warrant, arrest warrant, and order of protection on the request of a personal friend against the friend’s spouse was not being neutral and detached, and she was disciplined for violating Canon 2A of the Code … Continue reading
D.Conn.: While def should have presented affidavit of standing, the SW inventory supports his standing
In a corporate office search, defendant should have presented an affidavit to show his standing in the office space. Despite that, however, the government’s search inventory strongly supports his standing because it shows documents taken from what was described as … Continue reading
OR: Hyperventilating def was exigency for dispensing with blood draw warrant as time wore on
Because the warrant process [despite Oregon’s use of telephonic warrants] would take 2½ hours, there was exigency for defendant’s blood draw in the hospital. Moreover, defendant was hyperventilating when he was stopped, and they didn’t know whether he was faking … Continue reading
N.D.Cal.: 55 day delay in getting cell phone SW didn’t matter because this was a supervised release revo proceeding, and the exclusionary rule wouldn’t apply
Defendant’s cell phone was seized in an arrest for loitering for pimping. After his probation officer went back and forth with the police, he declined to search it under defendant’s search condition, and 55 days elapsed, and a search warrant … Continue reading
D.Neb.: Private search of envelope wasn’t expanded by the police
Defendant was subjected to a private search by his girlfriend, “Ms. X,” and records in envelopes were turned over to police. The looking in open envelopes is not analogous to the government’s looking at the film in their canisters like … Continue reading
AP: Not all departments sold on police body cameras
AP: Not all departments sold on police body cameras via Philly.com: Some municipalities still remain opposed to adopting police body cameras for its officers despite a continued effort by New Jersey to assist in the cost of the devices. Buffalo … Continue reading
NYTimes: F.A.A. Drone Laws Start to Clash With Stricter Local Rules
NYTimes: F.A.A. Drone Laws Start to Clash With Stricter Local Rules by Cecilia King The F.A.A.’s new stance sets up potential clashes across the country. Local and state lawmakers, concerned about the safety and privacy risks that drones pose, have … Continue reading
S.D.Tex.: Def driving away from home when warrant executed; he couldn’t be stopped and searched under this warrant
Officers elected to wait to execute the search warrant on defendant’s house until after he left it. Defendant was driving away from his residence when he was stopped, and he was searched and brought back. The stop and search of … Continue reading
NY4: Pulling def’s underwear out on the street was without reasonable suspicion
Forty-three months after his drug conviction, the officer’s search on the street of defendant’s genitals by pulling out his underwear and looking in was not based on reasonable suspicion he was armed. Search suppressed and case dismissed. People v. Smith, … Continue reading
CA7: Guilty plea didn’t preclude § 1983 claim for illegal search
Plaintiff’s guilty plea that waived his search issues did not have a preclusive effect on a later civil case that the officers violated his Fourth Amendment rights. Kykta v. Ciaccio, 2015 U.S. App. LEXIS 22417 (7th Cir. Dec. 22, 2015):