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- AR: RS def rented a hotel room was sufficient for search waiver; PC not required
- LA5: No standing to challenge search of shooting victim’s cell phone in def’s possession
- N.D.Okla.: Cell phones possessed by tribal police not subject to return under Rule 41(g)
- E.D.Ark.: Landlord and tenant refused rental property inspection and SW was validly issued and protected privacy interests
- D.D.C.: Judge shopping after denial of SW inappropriate; could have appealed to DJ
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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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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)
Website design by Wally Waller, Little Rock 
Monthly Archives: September 2016
The Atlantic: Trumpism Is the Symptom of a Gravely Ill Constitution
The Atlantic: Trumpism Is the Symptom of a Gravely Ill Constitution by Garrett Epps: No matter what happens in November, the sickness may be terminal.
MA: Def’s landlord’s statements were independent of any illegal entry, and they supported PC for SW
Statements from the owner of defendant’s house which made it into the search warrant application and were made after the alleged illegal entry by the police were an independent source. Thus, the motion judge properly denied the motion to suppress … Continue reading
C.D.Cal.: City’s bankruptcy stayed § 1983 case yet bankruptcy court granted injunctive relief
City’s bankruptcy stayed plaintiffs’ § 1983 Fourth Amendment case, but it still resulted in plaintiffs getting their injunctive relief from bankruptcy court. They are not without remedy. In re City of San Bernardino, 2016 U.S. Dist. LEXIS 127564 (C.D. Cal. … Continue reading
ND: When suspect lives in house and drug paraphernalia out, it’s not “mere presence” for his detention
When drug paraphernalia is present and in plain view, detaining all present is not a detention for “mere presence.” Moreover, defendant stayed there. State v. Schmidt, 2016 ND 187, 2016 N.D. LEXIS 177 (Sept. 15, 2016). Defendant’s stop on Ft. … Continue reading
S.D.Ohio: Whether Ohio window tint law is unconstitutional or not, that doesn’t make the stop unreasonable
Ohio’s window tint law delegates to administrators to determine the degree of tint. Whether the law is unconstitutional or not, that doesn’t make the stop under the law unreasonable or unconstitutional. United States v. Torbert, 2016 U.S. Dist. LEXIS 125616 … Continue reading
D.Nev.: SW for def’s trailer for evidence of practicing medicine without a license didn’t support search of a safe
The probable cause was for search of defendant’s trailer for evidence of conducting an illegal medical practice. Nothing in the affidavit supported search of defendant’s safe inside the trailer which was broken open and then a warrant was obtained to … Continue reading
Trump proposes profiling and stop and frisk based on race, opposes right to fair trial
Trump proposes profiling and suspicionless searches like Isreal, knowing his base will support it because they won’t be the targets. Apparently he only believes in the Second Amendment because we know he hates the First and now the Fourth and … Continue reading
LawNewz: LISTEN: Cops Accidentally Recorded Themselves Making Up Charges Against Protester, Lawsuit Says
LawNewz: LISTEN: Cops Accidentally Recorded Themselves Making Up Charges Against Protester, Lawsuit Says by Alberto Luperon:
KY: Click on wrong name on LPN reader screen same as erroneous warrant; exclusionary rule not applied because of mere negligence
An officer on patrol was running LPNs to see what he’d find. On defendant’s vehicle, a list a names came up, and the officer accidentally clicked on the wrong name resulting in defendant’s stop for an outstanding warrant that didn’t … Continue reading
ND: Birchfield vacated and dismissed on remand
Birchfield on remand: “We vacate our opinion affirming Birchfield’s conviction for refusal to submit to a chemical blood test to the extent it is inconsistent with Birchfield v. North Dakota. We remand to the district court with directions to allow … Continue reading
NM: Driver’s failure to produce proof of registration and insurance doesn’t permit search of console
Defendant’s failure to produce his registration and proof of insurance during a traffic stop didn’t give the officer justification to search the center console for it himself. Thus, defense counsel was ineffective for not raising this issue. State v. Howl, … Continue reading
D.Guam: Delay of packages with RS they contained drugs for 3 hours for dog sniff reasonable
Defendant didn’t hold the PMB address for the packages being shipped to him, but he filed a declaration saying that they were for him, so he has standing. When the packages arrived for sorting, they were slightly delayed, but it … Continue reading
W.D.Mo.: Smell of raw marijuana on the person is PC for a search
“In addition, in getting near to Jackson, Det. Garcia could smell unburnt marijuana on his person. Under these facts, the Court concludes that Det. Garcia had probable cause to arrest Jackson.” United States v. Jackson, 2016 U.S. Dist. LEXIS 124091 … Continue reading
D.N.J.: Anonymous DV call didn’t have to be corroborated to be relied upon by officer
Anonymous domestic violence call involving a gun was sufficient for the police to find it credible and respond. Corroboration isn’t the only way to make a call believable. The officers don’t have to see it to believe it, and the … Continue reading
W.D.Mo.: Def’s probation search justified by his not staying at the approved residence
Defendant’s probation search was justified by his not staying where he was permitted to stay as shown by tracking and later his own admission that he fumbled in retracting. A new crime isn’t required. United States v. Willard, 2016 U.S. … Continue reading
M.D.Ala.: 20 minutes to write a warning (8 min) and wait for drug dog (12 min) was reasonable
Thirty minutes total time from the stop until the dog sniff finished was reasonable in this case. By the time the dog was called for, only 18 minutes had elapsed, and 8 was used on the warning ticket. [Doing what, … Continue reading
Army Ct.Crim.App.: SW for evidence of sex abuse on computer didn’t include child porn
A military search warrant for evidence of “attempted sexual abuse of a child, abusive sexual contact with a child and other offenses related” did not include child pornography. When child pornography was found, another warrant was required, and CID didn’t … Continue reading
LA1: High crime area at night, furtive and evasive movements, and nervousness when encountering the officer was RS
High crime area at night, furtive and evasive movements, and nervousness when encountering the officer added up to reasonable suspicion. State v. Barnes, 2016 La. App. LEXIS 1669 (La.App. 1 Cir. Sept. 16, 2016):
OR: State didn’t show PC to seize all cell phones, cameras, and computers def might have to get one audio recording on his cell phone
There was an alleged domestic assault at defendant’s home. There was reason to believe the home security system and his cell phone would have evidence of it in an audio recording. He could also access the security system with his … Continue reading
D.Utah: Use of the drug dog while the ticket is being written is reasonable
Running a drug dog around a car before the ticket is finished being written is reasonable under Cabelles and Rodriguez. United States v. Smith, 2016 U.S. Dist. LEXIS 124158 (D.Utah Sept. 12, 2016). Defendants raised a Fourth Amendment IAC claim. … Continue reading