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- LA4: Merely having a concealed firearm isn’t RS for a frisk
- OR: Merely driving off the road wasn’t RS, but adding the driver’s demeanor at the time was
- OH6: Trial court’s failure to explain RS under Rodriguez required remand
- CA6: Asking def before a patdown during arrest what he had on him wasn’t barred by Miranda
- NY Queens: PC shown for SW blood drawn at hospital after car wreck
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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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"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: December 2016
The biggest big business in America is not steel, automobiles, or television. It is the manufacture, refinement and distribution of anxiety.
–Eric Sevareid, This Is Eric Sevareid (1964)
D.Md.: Extended border search from customs at JFK to locked warehouse in Maryland
The extended border search doctrine applied to a package shipped from China through customs at JFK and then to a warehouse in Bowie, Maryland. It was under lock and key, even on the truck, from customs to the warehouse where … Continue reading
WaPo: Fatal shootings by police remain relatively unchanged after two years
WaPo: Fatal shootings by police remain relatively unchanged after two years by Kimbriell Kelly, Wesley Lowery, Steven Rich, Julie Tate and Jennifer Jenkins:
W.D.N.Y.: CI with good track record isn’t less believable because she had a relationship with the def which “soured”
The CI in this case had a track record. Then she was involved with defendant, and then she set defendant up, too. The fact their relationship “soured” didn’t undermine her credibility on the question of probable cause. United States v. … Continue reading
D.Me.: Detaining def, taking his hotel room key, and moving him from outside the hotel to just outside his hotel room was an arrest; but here with PC
Detaining defendant, taking his hotel room key, and moving him from outside the hotel to just outside his hotel room was a clear indication to defendant he was under arrest. On the totality of circumstances, however, there was probable cause … Continue reading
WaPo: The Watch Blog: DOJ report: Arrests without PC, held for days without a lawyer; here it’s a “CID hold”
WaPo: The Watch Blog by Radley Balko: Incredible Justice Department report finds brazen and systemic police abuse in Louisiana. Officers in two departments made hundreds of “secret” arrests without probable cause. The arrests typically included strip-searches, and arrestees could be … Continue reading
The Legal Intelligencer, Will Technology Change the Interpretation of the Fourth Amendment?
The Legal Intelligencer, Will Technology Change the Interpretation of the Fourth Amendment? by Leonard Deutchman:
D.N.M.: Both protective sweep and emergency aid justifications fail for lack of objective facts somebody else was there
Where there are no articulable facts somebody else might be present in the house, the protective sweep doctrine can’t be relied on. Likewise with the emergency aid doctrine. Here there was a 911 hang up call, but the critical fact … Continue reading
D.Md.: Govt first raising standing in a supplement brief after hearing was waiver
The government’s first raising standing in a supplemental brief after the hearing is too late. United States v. Larson, 2016 U.S. Dist. LEXIS 175547 *3 n.2 (D.Md. Dec. 19, 2016):
New Law Review: “The Positive Law Model of the Fourth Amendment,” for evaluating new technological problems and the third-party doctrine
New Law Review: “The Positive Law Model of the Fourth Amendment,” 129 Harv. L. Rev. 1821 (2016) by William Baude & James Y. Stern: For fifty years, courts have used a “reasonable expectation of privacy” standard to define “searches” under … Continue reading
N.D.Ill.: While merely being close to another for whom there is reason to frisk or arrest is not PC, here there actually was PC
The FBI had more than reasonable suspicion based on mere propinquity to others. There were specific facts involving defendant that rose to reasonable suspicion. United States v. Amaya, 2016 U.S. Dist. LEXIS 174615 (N.D.Ill. Dec. 16, 2016).* Defendant’s cell site … Continue reading
N.D.Cal.: Going home after a drug sale from one’s van is nexus for SW for house
Defendant sold drugs from his van, but nexus was shown to his home. “[T]he fact that Johnson left his van and entered his home soon after completing a sale (the controlled sale observed here) provides a reasonable nexus between his … Continue reading
PA holds state constitution requires exclusionary rule applies to parole and probation revocation proceedings
PA holds state constitution requires exclusionary rule applies to parole and probation revocation proceedings. The court engages in a lengthy and sensitive analysis. Commonwealth v. Arter, 2016 Pa. LEXIS 2916 (Dec. 28, 2016):
Ars Technica: Here’s what a “digital Miranda warning” might look like
Ars Technica: Here’s what a “digital Miranda warning” might look like by Cyrus Farivar: Smartphone owners need to know if—and when—they need to reveal their passcodes.
New law review: Actual Expectations of Privacy, Fourth Amendment Doctrine, and the Mosaic Theory
New law review: Actual Expectations of Privacy, Fourth Amendment Doctrine, and the Mosaic Theory, by Lior Strahilevitz & Matthew B. Kugler (not online yet, if ever).
E.D.N.Y.: 791 days of GPS tracking of a parolee to catch others in a DTO was [somehow] not unreasonable
In a really strange case, a GPS monitor to track curfew violations of a parolee was left on for 791 days. The parole officers and then other officers watched where he was going to attempt to crack a drug trafficking … Continue reading
D.N.M.: When neither party requests a hearing and only disputed fact isn’t material, one won’t be held
Neither party requested a hearing on the motion to suppress and one isn’t required. Here, there is one disputed fact and it isn’t material to the outcome. United States v. Benavidez, 2016 U.S. Dist. LEXIS 175373 (D.N.M. Dec. 19, 2016).
CA8: As long as drug dog gets there before the traffic ticket is done, it’s all good
From the circuit that brought us Rodriguez, a drug dog on the scene within two minutes of a traffic stop and writing a ticket for no DL was reasonable. “Thus, there is no evidence that the dog sniff unlawfully prolonged … Continue reading
LA rule permitting electronic warrant applications and issuance doesn’t violate 4A or Rule 41
The police got a search warrant from a Louisiana state judge by electronic means, but the case ended up in federal court. Louisiana’s criminal rule permitting electronic warrant applications does not violate the “oath or affirmation” requirement of the Fourth … Continue reading