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)
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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: August 2016
CA10: Being a resident of Colorado is not reasonable suspicion for detention
“This case asks us to determine whether, under the totality of circumstances, Kansas Highway Patrol Officers Richard Jimerson and Dax Lewis … had reasonable suspicion to detain and search the vehicle of Peter Vasquez. In particular, this case presents the … Continue reading
IL: Mere presence in a high crime area isn’t reasonable suspicion
Mere presence in a high crime area isn’t reasonable suspicion, and defendant was unreasonably seized by police. People v. Williams, 2016 IL App (1st) 132615, 2016 Ill. App. LEXIS 555 (Aug. 19, 2016). “Reed Dempsey brought a civil rights action … Continue reading
MD: The length of handcuffing did not turn Terry stop into a de facto arrest
Despite the handcuffs, the detention remained a Terry stop. “Use of handcuffs does not elevate an investigatory detention to an arrest when concern that weapons are present and officer safety provide the bases. Continued use of handcuffs after a frisk … Continue reading
OR: Hot pursuit justified entry into def’s garage to arrest for DUI
Defendant fled from police who were attempting to stop him for DUI, and he entered the garage. The officer lawfully entered the garage in hot pursuit because of defendant’s flight. State v. Wright, 280 Ore. App. 259, 2016 Ore. App. … Continue reading
W.D.N.C.: Presence of LEOs for probation search did not make it unreasoanble
Defendant was subjected to a valid probation search. While his probation officers were present, law enforcement actually conducted the search, but this was not unreasonable. United States v. Mills, 2016 U.S. Dist. LEXIS 104903 (W.D.N.C. July 21, 2016), adopted, 2016 … Continue reading
KS: While entry into house to arrest for DUI was likely unreasonable, it was harmless error on this record; plenty of evidence without it
The court of appeals found the entry into defendant’s home to arrest him for DUI was unreasonable and without sufficient exigency, but, on the totality, it was not prejudicial error. There was plenty of evidence defendant was driving drunk without … Continue reading
MO: SW for first structure on left was particular where the actual first was a hidden building and second was a shed
Defendant claimed that the search warrant wasn’t particular enough because it described defendant’s house as the first structure on the left on private road. Defendant shows that there were two others, but the first wasn’t visible from the road and … Continue reading
NYLJ: Warrantless Cell Phone Pinging Exigency Analysis
NYLJ: Warrantless Cell Phone Pinging Exigency Analysis by Peter A. Crusco
CA6: Parole search of person finding baggie of drugs in buttocks wasn’t too intrusive; not a strip search
Defendant was subjected to a parole search of his person, something permitted under Michigan law and his parole status. A baggie of drugs was found in his buttocks. The search was reasonable and only intruded somewhat on his higher privacy … Continue reading
DC: That govt could have gotten a SW isn’t enough for inevitable discovery
Defendant’s admission that she “trashed” defendant’s stuff and it was in her hotel room was probable cause to believe there was evidence of a crime, but there was no exigency for a warrantless entry. Simply arguing that the government could … Continue reading
MA: Anticipatory SW for cell phone held by attorneys is granted; PC shown there is evidence available
Defendant gave his attorneys his cell phone, and it likely had text messages on it relevant to a murder investigation. A subpoena for the phone previously failed because of attorney-client privilege. Now the state seeks an anticipatory search warrant for … Continue reading
CA1: Officers lacked sufficient info def was in girlfriend’s apt to enter on arrest warrant
Officers lacked sufficient information on the totality defendant would be found at his girlfriend’s apartment when they entered on an arrest warrant. Most of the information was from a CI that it was logical he was there and he hadn’t … Continue reading
The Atlantic: How Did Justice Scalia Shape American Policing?
The Atlantic: How Did Justice Scalia Shape American Policing? by Barry Friedman: Donald Trump wants a Supreme Court appointee like the formidable late judge. But Scalia had a controversial and sometimes conflicted opinion on law enforcement.
DE: GPS monitoring of Tier III sex offenders satisfied “special needs” exception
Statute mandating GPS monitoring of all Tier III sex offenders granted parole or probation without reference to their individual risks of recidivism did not violate the Fourth Amendment under Vernonia’s “special needs” exception. Plaintiffs did not have a legitimate privacy … Continue reading
CA7: No REP in IP address because it is broadcast
There is no reasonable expectation of privacy in the IP address one is using because it’s broadcast far and wide. It is a mere business record under the third party doctrine, and Jones doesn’t alter the third party doctrine. United … Continue reading
CA3: Strip searching an inmate in isolation 3 times a day serves no penological purpose and is enjoined
Strip searching an inmate in isolation three times a day serves no penological purpose and is enjoined. Parkell v. Danberg, 2016 U.S. App. LEXIS 15092 (3d Cir. Aug. 17, 2016):
E.D.Mich.: Gov’t failed to prove nexus to def’s property in SW affidavit, so no PC
The government fails to prove nexus to defendant’s property in a drug search warrant for three addresses. The lack of nexus is a lack of probable cause [and the court doesn’t even discuss good faith exception]. United States v. Harvey, … Continue reading
AJC: Gwinnett police add drone to their investigative arsenal
AJC: Gwinnett police add drone to their investigative arsenal: The Gwinnett County Police Department has added a drone to its investigative arsenal…. GCPD believes it’s the first law enforcement agency in the state to seek drone approval from the Federal … Continue reading
N.D.Ala.: Strieff applied to a possibly negligent look through a garage window when OnStar reported location of stolen car
A Cadillac was stolen from a car dealer, and it was tracked by OnStar in the car. Police came to do a knock-and-talk. Two cars were in the carport that weren’t the stolen car. They looked through a window of … Continue reading
MA automatic standing only applies to possessory offenses, and it doesn’t apply to defendant’s murder charge
Massachusetts automatic standing only applies to possessory offenses, and it doesn’t apply to defendant’s murder charge. Commonwealth v. Miller, 475 Mass. 212, 2016 Mass. LEXIS 605 (Aug. 17, 2016). The government showed probable cause for the defendant but the connection … Continue reading