Archives
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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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Daily Archives: November 9, 2016
TX14: Dashcam video didn’t support officer’s version and appellate court won’t reverse suppression order
The dashcam video doesn’t support the state’s contention defendant was weaving before the stop, and there is no abuse of discretion in the trial court’s findings suppressing the stop for a “welfare check” that led to a DUI arrest. State … Continue reading
CA8: Key fob in pocket, common today, is not RS def was driving a nearby stolen car
A key fob in one’s pocket, common today, is not reasonable suspicion defendant was driving a nearby stolen car. The seizure was suppressed. United States v. Craddock, 2016 U.S. App. LEXIS 20118 (8th Cir. Nov. 8, 2016):
E.D.Wash.: Defending on lack of connection to property was best course; no IAC for lack of standing, and if motion made it would have lost on merits, too
Defendant’s counsel wasn’t ineffective: “This Court unequivocally finds that Defendant manifested a deliberate abandonment to any interest in his neighbor’s shed. Counsel was not ineffective by tactically defending the charge by highlighting the absence of positive evidence tying Defendant to … Continue reading
CADC: Bomb squad’s search hours later was not exigent and no QI
A top to bottom search of plaintiff’s home by the D.C. bomb squad hours into a “situation” at his home (actually based on a mistake) wasn’t remotely justified by exigent circumstances. Moreover, qualified immunity doesn’t apply (2-1 on this issue) … Continue reading
N.D.Iowa: Def’s GF who shared home who called police on him had apparent authority to consent
Defendant disavowed control over a bedroom in the single family home he lived in, and he had standing in the house as a whole and thus standing to challenge seizure of the gun found in that bedroom. The police here … Continue reading
S.D.Cal.: Admission of MJ in the trunk was PC; officer didn’t have to check on MMJ prescription
An admission defendant had marijuana in the trunk didn’t require the officer to check into whether defendant had a prescription for it. United States v. Robbins, 2016 U.S. Dist. LEXIS 153558 (S.D.Cal. Nov. 3, 2016). Defense counsel did, in fact, … Continue reading
N.D.W.Va.: “Officers are not required to completely confirm reasonable suspicions before they may perform an investigative stop — only to possess a suspicion that is reasonable.”
“Defendant’s identity was not relevant to reasonable suspicion that he committed an assault, since the witnesses who reported the assault did not know his identity and therefore could not report it to Captain Root. Captain Root had only a physical … Continue reading
S.D.Cal.: SW which was not overbroad merely by including a “tending to show” phrase
Scanning text messages on a cell phone at the border was reasonable. This wasn’t a full search, and this was just a “non-forensic scan” of the phone and not a “searching inquiry.” This led, however, to a search warrant which … Continue reading
D.N.M.: Def’s sister had keys to his storage units, and inquiry by the police led them to reasonably believe she had apparent authority
Defendant’s sister still had apparent authority to consent to search of his storage unit even though she didn’t know the access codes and she’d never been there. After inquiry by the police, it was reasonable for them to believe that … Continue reading