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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
- WaPo: These cities bar facial recognition tech. Police still found ways to access it.
- C.D.Cal.: SW materials in case with weighty public interest ordered unsealed
- DC: Accepting a law license is consent to trust account subpoenas
- 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: March 2016
D.Haw.: The nature of Hawai’i being what it is, it was not unreasonable for Postal Inspectors to divert a package to Honolulu for search
Defendant was suspected of shipping meth from Oahu to Kauai, Hawai’i. He flew out one morning to Honolulu and was returning that night. Officers waited in the airport for his return. They had two warrants for his arrest. When he … Continue reading
NY4: Driver has no standing in search of passenger’s person
Defendant has no standing to contest the search of the person of the passenger in his car. People v. Gibson, 2016 NY Slip Op 02193, 2016 N.Y. App. Div. LEXIS 2171 (4th Dept. March 25, 2016). There was justification for … Continue reading
Miami-Herald: Police body-cam recording of defense attorney causes stir in Miami-Dade
Miami-Herald: Police body-cam recording of defense attorney causes stir in Miami-Dade by David Ovalle: A Miami Beach cop, worried about his words being twisted at trial, recently used his newly outfitted “body camera” to record a hallway interview by a … Continue reading
WaPo: Outlook: No, America isn’t 100 percent safe from terrorism. And that’s a good thing.
WaPo: Outlook: No, America isn’t 100 percent safe from terrorism. And that’s a good thing by Juliette Kayyem: As members of a free society, we’ve implicitly accepted that some level of risk is tolerable.
Legal Intelligencer: Pa. Justices to Grapple With Public Access to Police Footage
Legal Intelligencer: Pa. Justices to Grapple With Public Access to Police Footage by Ben Seal: As a national conversation continues over the relationship between law enforcement and the public, sparked by videos of incidents of police brutality, the Pennsylvania Supreme … Continue reading
IL: Dog sniff at an apartment’s door at 3:20 am was unreasonable under Jardines
Dog sniff at an apartment’s door at 3:20 am was unreasonable under Jardines. It was a “constitutionally protected area.” People v. Burns, 2016 IL 118973, 2016 Ill. LEXIS 281 (March 24, 2016). Officers did a knock-and-talk based on apartment neighbors’ … Continue reading
IA: While no “hot pursuit” of DUI suspect into his house, def’s belligerent attitude justified exigency for entry
Defendant was driving under the influence, having run into a building, and the police were called. When officers got to defendant’s home, he was somewhat belligerent, and the police ultimately entered the house. Distinguishing Welsh v. Wisconsin and admitting there … Continue reading
N.D.Ind.: The officers’ use of conversational speech in describing defendant’s driving was not so vague that it did not show RS
The officers’ use of conversational speech in describing defendant’s driving was not so vague that it did not show reasonable suspicion. “While Burnett argues that Officer Fuhrman and Officer Winston failed to articulate facts supporting reasonable suspicion to justify the … Continue reading
IL: 1:30 am U-turn 50′ before safety roadblock was RS
Defendant’s U-turn over railroad tracks 50′ before a “safety roadblock” set up on a highway just across the state line from Iowa was reasonable suspicion. (Time of day was an important factor.) It was not indicative of “going about one’s … Continue reading
TX13: Police search of iPod didn’t exceed private search; warrant valid
Defendant worked at a DQ and he cleaned a bathroom. Later, another employee found an iPod in the bathroom, and turned it in to a supervisor. It was looked at to determine ownership, and it was locked up until the … Continue reading
OR: SW for trace evidence on carpets allowed search of carpet cleaning equipment
In an attempted murder case, defendant was convicted of conspiracy. “[P]olice had a warrant to search the entire residence for evidence, and that DNA, blood or blood spatter, hair, and trace evidence were the types of evidence that one could … Continue reading
NY: Two on waiver for failure to articulate search issue, and failure to join defendant’s search issue is waiver
Defendant failed to preserve for review most of the issues for suppression by not making them specific in his motion to suppress and then getting the issue somehow before the trial court. Moreover, his failure to join in a codefendant’s … Continue reading
The Hill: Former NSA head to FBI: ‘Get over’ Apple dispute
The Hill: Former NSA head to FBI: ‘Get over’ Apple dispute by Cory Bennett: A former head of two intelligence agencies had a clear message on Friday for the government as it tries to get Apple to unlock an iPhone … Continue reading
Cal.1st: Warrantless school search of cell phone on RS justified by T.L.O.
A warrantless search of cell phone in a school was justified by reasonable suspicion under T.L.O. that the student had been in possession of a firearm found at school. There was sufficient exigency for Riley under T.L.O. Alternatively, the search … Continue reading
CT: Photographing def’s body would not be a search
“In the present case, the police officers’ attempts to photograph the defendant did not constitute either an unreasonable search or compelled self-incrimination. Because the defendant had no fourth or fifth amendment right to refuse to be photographed, his noncooperation was … Continue reading
TX: Being a ‘known criminal’ on the street at 2 am in a high crime area not reasonable suspicion
The officer “cited the time of day, the area’s known narcotic activity, and his belief, based on what other officers had told him, that Appellant was a ‘known criminal’ as the reasons for detaining Appellant. The court of appeals concluded … Continue reading
W.D.Tenn.: Def had a reasonable expectation of privacy in iPad even though family and housekeeper had password
Defendant had a reasonable expectation of privacy in his iPad that was in his house despite the fact that others in the home, including the housekeeper, had the password. The housekeeper saw likely child pornography and told the police, and … Continue reading
CA8: Where two crimes alleged in affidavit and PC as to each is sufficient, Franks challenge to one is moot
Defendant’s Franks challenge fails: There were two unrelated crimes referred to, and the PC as to the drug crime was not challenged. As to the other, that wasn’t even in federal court, so it doesn’t matter and wasn’t material to … Continue reading