Archives
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- M.D.Pa.: Def was neither shipper nor recipient of USPS parcel, so he had no standing in it
- WI: Obtaining def’s DNA by ruse wasn’t an illegal search
- WaPo: Apple, Google and Venmo fight new U.S. plan to monitor payment apps
- CA4: Tracking order using cell site simulator with PC was reasonable
- CADC: When searching a cell phone and officers find it belonged to someone else, a new SW isn’t required; SWs are directed at things, places, and people and owner doesn’t matter for PC
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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)
--Outline of Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012)
--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: February 2017
M.D.La.: When multiple people with apparent authority are present, just one can consent
When multiple people with apparent authority are present, any one of them can consent. Here, the credible evidence shows that three did. Defendant’s Randolph argument is rejected. United States v. Bourgeois, 2017 U.S. Dist. LEXIS 18927 (M.D. La. Feb. 9, … Continue reading
D.Nev.: No actual or apparent authority to consent shown; presence of gun in motel room not exigency per se
Actual authority to consent and apparent authority in a motel room are two different things. Here, the government can’t show either on this record. The possibility of a gun in the room is not an exigent circumstance. United States v. … Continue reading
Orin Kerr on Playpen warrants:
DOJ has filed appellate briefs in 3 Playpen warrant cases– CA1, CA8, CA10. Notably, none of the DOJ briefs argue no search occurred. And, Playpen warrants sustained. United States v. Pawlak, 2017 U.S. Dist. LEXIS 23100 (N.D. Tex. Feb. 17, … Continue reading
CA5: No QI immunity for arrest for videotaping police station; 1A claim was not well-settled at time of arrest, but it is now
Plaintiff was arrested in September 2015 for videotaping a Ft. Worth police station from across the street. They first asked him for identification which he refused to provide. Then they arrested him and left him in a hot police car … Continue reading
OH7: The SW included def’s car, and her driving off before police could search it didn’t prevent stopping and searching it away from the house
The search warrant for defendant’s house included her car. When he arrived there, the police attempted to stop her to search the car, but she got away and was stopped about a mile away. Because the warrant provided for the … Continue reading
D.Neb.: Driving 1,000 miles to Iowa to meet one’s brother without knowing where in the entire state was “unusual travel plans”
The officer reasonably extended the stop by seven minutes by defendant’s consent after he told the defendant the stop was over and defendant agreed to answer more questions. The reasonable suspicion was that he was meeting his brother in Iowa … Continue reading
CA11: Normal part of the stop for Rodriguez included trying to call somebody to come and take the car
The normal incidents of the stop for Rodriguez purposes included trying to call somebody else to come and take possession of his vehicle. United States v. Vargas, 2017 U.S. App. LEXIS 2745 (11th Cir. Feb. 16, 2017). “In his complaint, … Continue reading
OH2: Property can’t be returned when it still has evidentiary value
“There was little evidence regarding the floppy disks, CDs, and Rolodex, but the burden was on Webber to demonstrate that she was entitled to their return. Upon review of the record, the evidence before the trial court supported a conclusion … Continue reading
AR: Knock-and-announce applies to parole searches, but Hudson adopted and exclusionary rule doesn’t apply
The knock-and-announce rule applies to parole searches, and violation of the rule is a substantial violation of the Fourth Amendment and the state constitution. The court adopts Hudson, however, and finds that the exclusionary rule should not be applied. Lane … Continue reading
E.D.La.: Not every detail needs be included in affidavit; omissions here only would bolster PC
Defendants had standing in packages shipped to them under assumed names. As to the affidavit: “In terms of any omissions, neither the omission of the statistics on the “profile,” nor the omission of information on the dogs’ reliability, warrants the … Continue reading
Richmond County Daily Journal: StingRay is why the 4th Amendment was written
Richmond County Daily Journal: StingRay is why the 4th Amendment was written by Olivia Donaldson:
MO: Where there are two justifications for a stop, challenging only one does not provide relief
There were two justifications for defendant’s stop. Defendant only challenged one, so it’s moot. State v. Swartz, 2017 Mo. App. LEXIS 74 (Feb. 14, 2017). The sound of defendant’s car apparently hitting another car constituted a hit and run, and … Continue reading
WA: While impoundment was permissible, state law required reasonable alternatives be considered first
While impoundment was statutorily permitted, state law requires alternatives be explored before impoundment. Here it wasn’t, so the impoundment is suppressed. State v. Froehlich, 2017 Wash. App. LEXIS 366 (Feb. 14, 2017):
E.D.Wis.: Rental unit inspection ordinance not violation of 4A where 21 day notice given
In a rental unit inspection ordinance case, the court declines to grant a preliminary injunction. The tenants have rights, of course, but state law permits the landlord to conduct inspections on his or her own and, most importantly, there is … Continue reading
Cal.2d: Sandra Bullock’s stalker’s home search remains suppressed
Defendant was Sandra Bullock’s stalker arrested in her house. He lawyered up but the police kept questioning and got consent which was held involuntary by the trial court. The state appealed. They tried inevitable discovery, and that was rejected. Finally, … Continue reading
MN: Arrest warrant permits entry into home of third party for arrest of guest
“Neither the United States Constitution nor the Minnesota Constitution requires police to obtain a search warrant before entering a third party’s home to execute a lawfully issued arrest warrant for a guest.” State v. deLottinville, 2017 Minn. LEXIS 55 (Feb. … Continue reading
WaPo: ‘The Watch’ Blog: A day with ‘killology’ police trainer Dave Grossman
WaPo: ‘The Watch’ Blog: A day with ‘killology’ police trainer Dave Grossman by Radley Balko: These classes are getting increasingly popular at a time when the dominant political party seems to believe police officers should be given more latitude, get … Continue reading
WaPo: The Fourth Amendment at the border and beyond: A few thoughts on Hernandez v. Mesa
WaPo: The Fourth Amendment at the border and beyond: A few thoughts on Hernandez v. Mesa by Orin Kerr:
Criminal Law: White House, Gorsuch Could Clash on Search and Seizure
Criminal Law: White House, Gorsuch Could Clash on Search and Seizure by Jessica DaSilva: Protections for non-citizens against unreasonable government searches and seizures could be an area of disagreement between President Donald J. Trump and his nominee to the U.S. … Continue reading