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Recent Posts
- MO: Initial bail setting under Gerstein not adversarial
- D.Alaska: Protective sweep after def’s arrest not justified, but there was exigency otherwise
- D.Colo.: Four day delay in getting SW for seized car wasn’t unreasonable
- 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
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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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"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: May 2016
GA: Officer searched after a private search, but state failed in burden of showing any justification for officer’s search
Defendant was transported to the hospital by ambulance after a car wreck. Hospital security smelled marijuana in his backpack and searched it and called the police. An officer arrived and searched the backpack without consulting with hospital security. The search … Continue reading
CA2: Retention of mirror image of hard drives for 3 yrs before searching them under SW was at least good faith
The government copied defendant’s hard drives in 2003 but didn’t get around to searching them until 2006. After discussing the privacy interests in data and the wealth of information that could be held on a computer, the court said: “Having … Continue reading
DC: A SW doesn’t have to be just for evidence of a crime—it can be for “evidence that might lead to other evidence”
A search warrant doesn’t have to be just for evidence of a crime—it can be for “evidence that might lead to other evidence.” In re Grand Jury Witness G.B., 2016 D.C. App. LEXIS 170 (May 26, 2016):
Texas Lawyer: Federal Judge Allows Plaintiff to Sue Officers After He Was Detained for Videoing a Police Station
Texas Lawyer: Federal Judge Allows Plaintiff to Sue Officers After He Was Detained for Videoing a Police Station by John Council: An Austin federal judge has ruled that an amateur photographer can pursue a civil rights case against four police … Continue reading
OH11: Lack of findings of fact and conclusions of law on suppression ruling requires reversal
Lack of findings of fact and conclusions of law requires reversal. “While it is error for the trial court to fail in providing requested findings of fact, it is not prejudicial where the record provides an appellate court with a … Continue reading
CNET: Senate bill would let FBI read your emails without a court order
CNET: Senate bill would let FBI read your emails without a court order by Shara Tibken The 2017 Intelligence Authorization Act would deal a blow to privacy by making government surveillance easier.
TX: Two cases on exigency for warrantless blood draw for DUI
Cole v. State, 2016 Tex. Crim. App. LEXIS 84 (May 25, 2016) (dissent), found exigency, reversing the court of appeals. Defendant here drove 110 mph down a city street, ran a red light, and the ensuing accident resulted in a … Continue reading
CA9: It was obvious by signs and longstanding practice that military bases are secure; having to lockup belongings before a consensual interview on the base wasn’t a seizure
Plaintiff was employed by the military, and NCIS had him come to a base for an interview about budgetary matters. The base was secure and everybody entering was subject to search and knew it from the signs. In the interview … Continue reading
PA: Trial court erred in finding separate room in apt searched with SW was somebody else’s separate living quarters
The search warrant was for an apartment, and there was no justification for the trial court’s finding that a separate room inside was really separate living quarters for somebody else. There was no separate entrance or no mailbox. Commonwealth v. … Continue reading
Slate: If You Fly a Drone, so Can Police
Slate: If You Fly a Drone, so Can Police by Stephen E. Henderson: What the Fourth Amendment says about law enforcement use of unmanned aerial vehicles.
AZ: When statute unambiguous, officer’s mistake of law a little hard to argue
The officer’s stop of defendant based on a mistake of law about the taillight being a backup light was not reasonable. The statute was unambiguous, and Heien provides no support. State v. Stoll, 2016 Ariz. App. LEXIS 89 (May 23, … Continue reading
D.Neb.: Controlled buys and watching def to go his storage unit for more was PC
Defendant had been coming and going from a storage unit where the police knew he stored methamphetamine. “There had been controlled purchases of methamphetamine directly from Leyva-Martinez. Officer Milone and other OPD officers had sufficient probable cause to stop the … Continue reading
CA9: 911 call about two black male teenagers involved in a crime didn’t give PC to arrest three Samoan teenagers; immediately recognizing a toy gun as such wasn’t RS
The court of appeals had jurisdiction to consider defendant officers’ appeal from denial of qualified immunity on plaintiffs’ Fourth Amendment unlawful arrest and search claims, but the court’s jurisdiction was limited to deciding whether the officers were entitled to qualified … Continue reading
CA4: Failure to make eye contact or acknowledge police not RS
Defendant was stopped because he was the only person seen in a three block radius from a shots fired call. His failure to respond to the police or make eye contact was ambiguous and within his rights, so it couldn’t … Continue reading
Cal.6: RS existed for only a few seconds and dissipated but police continued the detention; consent came during invalid arrest
Defendant consented to a patdown which produced a small hard object that resulted in his handcuffing. It was a diamond, and the handcuffing stopped, but the stop didn’t. “We agree with defendant that, once police realized the object was a … Continue reading
HuffPo: IRS Returns Bakery’s Money After 3 Years. Now It Wants To Put The Owners In Prison.
HuffPo: IRS Returns Bakery’s Money After 3 Years. Now It Wants To Put The Owners In Prison by Nick Wing: Another small business gets chewed up and spit out by the civil asset forfeiture machine.
WaPo: ‘The Watch’ Blog: Once again, body cameras are only as good as the policies that come with them
WaPo: ‘The Watch’ Blog: Once again, body cameras are only as good as the policies that come with them by Radley Balko: The takeaway from this study is not that body cameras fail to minimize violence between police and citizens, … Continue reading
W.D.Tex.: Criminal defense lawyers state 4A claim against jail phone co. for recording attorney-client calls
The plaintiff lawyers group, an association of criminal defense lawyers, have standing in their own right and individually to complain of recording of attorney-client telephone calls from the Travis County Jail. They also state a claim under the Fourth Amendment … Continue reading