Archives
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Recent Posts
- 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,
citations, and links -
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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)
ACLU on privacy
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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: May 2016
D.N.J.: Flight from a stop isn’t a seizure
Defendant’s former girlfriend reported to police that he’d threatened her with a gun. Police found him exactly matching the description, and they got out of the car and told him to stop. He threw down his backpack and fled. The … Continue reading
S.D.Ind.: Where factual basis for stop, pretext fails
Because there was a factual basis for defendant’s stop, defendant’s pretext argument that the officer was looking for his guns fails. United States v. Parker, 2016 U.S. Dist. LEXIS 62140 (S.D.Ind. May 11, 2016).* Defendant’s unsafe lane change justified a … Continue reading
D.Ore.: Admission of drugs in car, an illegal knife, lying about another knife, and an arrest warrant was RS for a weapons search
After a valid traffic stop, officers had reasonable suspicion to search a bag for weapons based on an admission by one occupant there were drugs in the car, an outstanding felony warrant on the driver, and two knives (one illegal … Continue reading
Book 25% off and free shipping next 56 hours
Until Midnight Eastern, May 26th. Call 937.247.8271 or email niki.lee@lexisnexis.com to receive 25% off + FREE shipping on orders over $350.
S.D.Iowa: Cell phone in halfway house in violation of rules subject to supervised release search condition
Improper possession of a cell phone in a halfway house made the phone subject to search and seizure under the “parole exception” of Knights. Defendant also had a search condition on him, and signs at the halfway house warned of … Continue reading
N.D.Cal.: Civil seizures of counterfeit goods under 15 U.S.C. § 1116 are governed by the Fourth Amendment
Civil seizures of counterfeit goods under 15 U.S.C. § 1116 are governed by the Fourth Amendment. United States v. Shayota, 2016 U.S. Dist. LEXIS 64388 (N.D.Cal. May 13, 2016):
W.D.N.Y.: Accidental inclusion of another address in SW papers wasn’t prejudicial where the correct address was prominent
A typo in the address from including an address from a prior warrant at the end but where the correct address was at the time was hardly prejudicial. If the latter address had been searched, that would be really important, … Continue reading
MD: DUI stop and arrest permits search incident for source of intoxication
“Under Arizona v. Gant, 556 U.S. 332 (2009), when a police officer validly arrests a motorist for driving under the influence of alcohol, in the absence of facts indicating otherwise, the officer, based on his or her knowledge and experience, … Continue reading
N.D.Okla.: “Playpen” website SW invalid as outside USMJ’s jurisdiction and no GFE, but a case contra, too
In the fifth Tor “Dark Net” case involving the child pornography “Playpen” website where the government took over the website and moved it to Virginia, this court, applying Tenth Circuit precedent, finds the USMJ lacked jurisdiction to issue a search … Continue reading
W.D.N.C.: Wired CI invaded no REP in transmitting audio and video to waiting officers
Defendants admitted a wired CI into a home for a drug deal. The CI transmitted real time to officers outside audio and video of the drugs and guns. No reasonable expectation of privacy was involved. He could see exactly what … Continue reading
CA6: Absent renter of motel room could consent to search after def arrested and removed
Defendant was wanted for being a serial robber in Chattanooga, and the FBI located him at a motel. They attempted a ruse to get him out of the room, but he didn’t fall for it. They used a master key … Continue reading
Two on exigency and DUI blood draws
The record, including medical records from the hospital, support the trial court’s findings that defendant was alert and competent and consented to the blood draw. State’s exigency argument doesn’t need to be addressed. State v. Cooper, 2016-Ohio-3093, 2016 Ohio App. … Continue reading
New American: Illinois Lawmakers Unanimously Pass Ban on Unwarranted Stingray Surveillance
New American: Illinois Lawmakers Unanimously Pass Ban on Unwarranted Stingray Surveillance by Joe Wolverton:
E.D.Wis.: The inferences for RS offered here simply aren’t reasonable
After a robbery report, the two apparent suspects had been arrested. Yet, the investigation continued and stopped defendant in the vicinity, and the inferences used to justify it aren’t even reasonable. “Even crediting Deputy Niles’s testimony that store robberies typically … Continue reading
FL5: Pre-Riley cell phone search incident valid under Davis GFE
Pre-Riley cell phone search incident: “We agree that the initial search violated Burton’s Fourth Amendment rights but nevertheless affirm the denial of his motion to suppress evidence based on the exception to the exclusionary rule articulated by the United States … Continue reading
IN: Blanket probation search condition was valid
Defendant was told he had a blanket search condition as a condition of probation. Prior case law in Indiana has held that reasonable suspicion isn’t required, and this court can’t and won’t change it. Hodges v. State, 2016 Ind. App. … Continue reading
OH7 follows Hudson; failure to knock-and-announce doesn’t warrant suppression
A failure to properly knock-and-announce an entry does not warrant suppression, following Hudson v. Michigan. State v. Bembry, 2015-Ohio-5598, 2015 Ohio App. LEXIS 5397 (7th Dist. December 30, 2015). [Yes, just now on Lexis.] The motion to suppress is denied … Continue reading
N.D.Cal.: Def’s stop here was really no more than on a hunch; RS lacking for mere proximity to a crime
On the totality, officers lacked reasonable suspicion to stop defendant for mere proximity to a crime. The government’s hypotheticals don’t overcome that this was essentially a hunch. She stared straight ahead when there were a bunch of police cars around, … Continue reading
D.Haw.: False alert package was opened didn’t nullify reasonable belief of exigent circumstances
The package had a GPS and a trigger “alarm” or alert for when it was opened. Here, however, the trigger alert was subject to failure if the package was dropped with sufficient force. Officers assembled outside the apartment, and the … Continue reading
E.D.Wis.: SW particularity shown in attachments; lack of a computer search protocol not a violation of Fourth Amendment
The attachments to the application and search warrant, reasonably read, limited the search and provided necessary particularity. [Comprehensive discussion of principles of interpretation of documents.] The lack of a computer search protocol didn’t violate the Fourth Amendment. United States v. … Continue reading