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- AR: RS shown for boating while intoxicated stop
- W.D.Mo.: Wrong address in SW wasn’t fatal where right house was searched
- NY: Failure to show independent source for officer’s observation of def required reversal
- VA: Outline of a gun in def’s pocket was RS
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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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--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: March 2017
The Guardian: Man jailed until he unlocks encrypted hard drives in child abuse images case
The Guardian: Man jailed until he unlocks encrypted hard drives in child abuse images case by Olivia Solon: Former Philadelphia police officer Francis Rawls, who has been in jail for 17 months, has refused to obey a court order to … Continue reading
The Intercept: Real-Time Face Recognition Threatens to Turn Cops’ Body Cameras into Surveillance Machines
The Intercept: Real-Time Face Recognition Threatens to Turn Cops’ Body Cameras into Surveillance Machines by Ava Kofman: “These cameras are small, hard to notice, and all over the place. That’s a pretty lethal combination for privacy unless we have reasonable … Continue reading
WaPo: Marijuana raids are more deadly than the drug itself
WaPo: Marijuana raids are more deadly than the drug itself by Christopher Ingraham: Since 2010, At least 20 SWAT raids involving suspected marijuana dealers have turned deadly, according to data compiled by the New York Times.
WaPo: The Senate just voted to undo landmark rules covering your Internet privacy
WaPo: The Senate just voted to undo landmark rules covering your Internet privacy by Brian Fung:
ABAJ: Google vows to fight search warrant seeking the names of everyone who Googled crime victim
ABAJ: Google vows to fight search warrant seeking the names of everyone who Googled crime victim by Debra Cassens Weiss: Google says it will fight a search warrant seeking information about anyone who searched the name of a financial crime … Continue reading
CA3: 5A no bar to using All Writs Act and contempt power to order target to decrypt hard drive
The government can use the All Writs Act to get the target of a search to decrypt a hard drive because it does not violate the Fifth Amendment. Challenging the merits of the underlying order in a civil contempt isn’t … Continue reading
Texas finally adopts the Davis good faith exception to its statutory exclusionary rule
Texas finally adopts the Davis good faith exception to its statutory exclusionary rule to a pre-Jardines dog sniff in a wide ranging and scholarly opinion surveying all the federal circuits on Davis and attenuation. McClintock v. State, 2017 Tex. Crim. … Continue reading
D.Del.: Evasiveness during a public intox arrest justified Terry frisk
Defendant was arrested for public intox and he became evasive including a request that his name not be run for warrants. That justified a Terry frisk. United States v. King, 2017 U.S. Dist. LEXIS 40213 (D. Del. March 21, 2017).* … Continue reading
E.D.Cal.: A stolen laptop from a prison medical provider wasn’t a “search”
A laptop of the medical provider was stolen, and plaintiff was told that his medical information may have been on it. He sued claiming a violation of the Fourth Amendment. This doesn’t state a claim. A stolen laptop is not … Continue reading
M.D.Pa.: Being a drug dealer by trade doesn’t mean one’s house is subject to search; a bit more required
Being a drug dealer by trade doesn’t mean one’s house is subject to search. It is, however, an inference that can be drawn along with other facts. United States v. Couvertier, 2017 U.S. Dist. LEXIS 40270 (M.D. Pa. March 21, … Continue reading
W.D.Okla: Def bears burden of proving “private search” was by government actor and did; suppressed
Defendant has sufficient interest in the business from which a thumb drive with data was taken and turned over to ICE officers at the U.S. Embassy in Panama. (The court acknowledges that it’s not “standing,” per se, but it continues … Continue reading
WaPo: Who’s logging your face?
WaPo: Who’s logging your face? by Alvaro Bedoya: You probably remember the day you got your driver’s license. You went to the department of motor vehicles, took a driving test, stood for a photograph and then got your license. What … Continue reading
E.D.Tenn.: Defense counsel’s choice of questions during suppression hearing was a strategy choice
Defense counsel’s handling of the suppression hearing and the questions asked was within the strategy choices of counsel. And, even if defendant had a real point here, he can’t show he was prejudiced by anything that wasn’t put into evidence. … Continue reading
E.D.N.Y.: Def objection to new saliva sample by SW denied
Defendant pro se opposed the taking of a new saliva sample. For some reason, the government applied for and obtained a new warrant for saliva having determined that the prior sample was too old or insufficient. The taking of the … Continue reading
OH11: Knocking on door jamb and pushing open partly open door was reasonable and with exigent circumstances
Defendant’s motel room door was partly open, and the officer knocked on the door jamb and then pushed the door open. This was reasonable because there was both probable cause and exigent circumstances for opening the door. State v. Fletcher, … Continue reading
E.D.Mich.: “electronic devices, narcotics and related paraphernalia, and biological evidence” was sufficiently particular
“Here, the warrants authorized officers to seize three categories of items: electronic devices, narcotics and related paraphernalia, and biological evidence. The affidavits established probable cause that Jackson’s electronic devices could contain evidence of sex trafficking—including photographs, documentary evidence, and advertisements—based … Continue reading
A.F.Ct.Crim.App.: There’s little REP in a shared desk, and search of desk didn’t make it into SW affidavit
Appellant was an Air Force OSI investigator investigated for fraud against the government for false travel vouchers. A search of a shared desk by a coworker produced some documentation, but the government was already on to him, and a civilian … Continue reading
WaPo: A cop fires. A teen dies. Yet six police body cameras somehow miss what happens.
WaPo: A cop fires. A teen dies. Yet six police body cameras somehow miss what happens. by Craig Timberg:
SCOTUS: Manuel v. City of Joliet: Pretrial detention is governed by the Fourth Amendment, especially when the probable cause for detention is on fabricated evidence
Manuel v. City of Joliet, 2017 U.S. LEXIS 2021 (U.S. March 21, 2017). SCOTUSBlog: Opinion analysis: The Fourth Amendment governs unlawful pretrial detention claims even after legal process begins; everything else is remanded by Rory Little Syllabus:
WaPo: The Watch Blog: On Wednesday, the Supreme Court will hear a case with major implications for the Second and Fourth Amendments
WaPo: The Watch Blog: On Wednesday, the Supreme Court will hear a case with major implications for the Second and Fourth Amendments by Radley Balko: