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Recent Posts
- 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
- CA: Avoiding the police in a high crime area isn’t RS
- CA7: Jail officials holding plaintiff under a valid court order aren’t liable for not releasing him sooner after a sentencing error
- Volokh: Do Fourth Amendment Protections Change When Property Is Moved?
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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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Monthly Archives: March 2017
CA10: Random drug testing of juvenile detention supervisors was reasonable
The special needs doctrine justified warrantless random drug testing of juvenile detention officers. A documented problem of drug abuse is not required before they can be tested. The government satisfies its burden for random drug testing in this context balanced … Continue reading
DE: Heavy foot traffic between a house there is PC as to doesn’t make the other subject to search
Heavy foot traffic between two homes is not indicative of criminal activity even where there is plenty of probable cause as to one. The other home is not guilty by association. State v. Harding, 2017 Del. Super. LEXIS 113 (March … Continue reading
E.D.Cal.: Def satisfies Franks burden to get a hearing because nexus in affidavit for SW is weak
Defendant satisfies the Franks preliminary showing of false or misleading statements about alleged victims to get a Franks hearing. The nexus requirement of the affidavit is just barely met, and the hearing could undermine the probable cause showing. United States … Continue reading
EFF: Border Agents Need A Warrant to Search Travelers’ Phones, EFF Tells Court
EFF: Border Agents Need A Warrant to Search Travelers’ Phones, EFF Tells Court (press release): The Border Isn’t a Constitution-Free Zone Richmond, Virginia—Border agents must obtain a warrant to search travelers’ phones, tablets, and laptops, which contain a vast trove … Continue reading
D.Ariz.: Immigration checkpoint stop can be enlarged because of smell of marijuana
During an immigration checkpoint on a state highway in Arizona, the smell of marijuana coming from the car allowed the stop to go longer under Rodriguez. “Ruiz-Hernandez has not pointed to any authority, in any context, where law enforcement is … Continue reading
E.D.Pa.: Citizen informant pointing out def face-to-face presumptively reliable
A citizen informant pointing out defendant as having a gun, right in front of him, is entitled to presumptive credibility because she exposed her knowledge to defendant and risked retaliation. United States v. Slone, 2017 U.S. Dist. LEXIS 38515 (E.D. … Continue reading
CA10: QI isn’t determined by violation of state law; has to be violation of federal law
In a fractured panel decision, the Tenth Circuit holds that federal law governs qualified immunity, not state law. Here, defendant violated clearly established state law, but the district court didn’t decide whether it violated clearly established federal law. Remanded. Stanley … Continue reading
IL: Dropping bottle when officer rolled down his window and said “come here” was not in response to a seizure
Defendant abandoned bottle of cannabis by dropping it when the officer rolled down his window and said “come here.” The court spends many paragraphs agreeing with the trial court that defendant hadn’t been seized at that point because it was … Continue reading
W.D.Ky.: Even if there wasn’t PC for a home search, there was RS for a parole search
Even if the officer’s showing was insufficient to show probable cause, the officer could rely on defendant’s parole search waiver for the search because the information clearly provided at least reasonable suspicion. United States v. Ickes, 2017 U.S. Dist. LEXIS … Continue reading
D.Del.: Dog sniff at a storage unit not a search
A dog sniff at a storage unit didn’t violate any reasonable expectation of privacy. It isn’t the same as curtilage of the home. Defendant’s attempt to show a Franks discrepancy because he originally rented C43 but moved two weeks later … Continue reading
WaPo: ‘The Watch’ Blog: South Carolina police shot a man to pieces over $100 worth of pot, then lied about it
WaPo: ‘The Watch’ Blog: South Carolina police shot a man to pieces over $100 worth of pot, then lied about it by Radley Balko: Prosecutors drop drug charges against Julian Betton after cops’ account of the raid that paralyzed him … Continue reading
The Libertarian Republic: Rand Paul Reintroduces “FAIR Act” to Restore Respect for the 5th Amendment [in forfeitures]
The Libertarian Republic: Rand Paul Reintroduces “FAIR Act” to Restore Respect for the 5th Amendment [in forfeitures] Kentucky conservative Senator Rand Paul reintroduced S. 642, the FAIR (Fifth Amendment Integrity Restoration) Act on Wednesday. The intention of the bill is … Continue reading
S.D.Ala.: RS supported stop of defs’ boat in international waters; scuttling a sinking ship after full investigation not spoliation of evidence
The government showed reasonable suspicion to believe that defendants’ ship was engaged in drug smuggling when it was seen again off the Colombian coast heading to the U.S. along a known smuggling route. The USCG elected to scuttle the boat … Continue reading
S.D.Fla.: Pictures on def’s Instagram account corroborated CIs
Defendant’s Instagram pages allowed agents to see photographs of firearms and bottles of promethazine with codeine (“molly”) and marijuana. Defendant was already a suspected molly distributor with two prior cocaine convictions, and that substantially helped show probable cause for a … Continue reading
AL: Lack of an inventory sheet fatal to the state’s claim the search was valid as an inventory
The lack of an inventory sheet fatal to the state’s claim the search was valid as an inventory. Keith v. State, 2017 Ala. Crim. App. LEXIS 14 (March 17, 2017):
TN: Overbroad certified question for appeal, such as “the [in]validity of the search and seizure,” leads to dismissal
In a non-search case, the Tennessee Court of Criminal Appeals dismisses an appeal for an overbroad “certified question” for appeal, citing from a 2001 search and seizure case where the issue was presented as “the validity of the search and … Continue reading
W.D.Pa.: Telling def to stop moving his hands in a car wasn’t a seizure
Telling defendant to stop moving his hands around while he’s sitting in a car isn’t a “seizure.” When defendant complied, the officer who stopped him could see the corner of a baggie for drugs in plain view on the console, … Continue reading
W.D.Ark.: Def counsel has apparent authority to receive property returned after arrest
In a civil action for return of property: “In the specific context of the disposition of property, district courts have found that the government acts appropriately when it disposes of property in a manner consistent with actions or representations made … Continue reading
S.D.W.Va.: Flagrant violation of 4A with warrantless GPS on def’s car doesn’t get suppressed because of def’s lack of standing at time of search
The police flagrantly violated the Fourth Amendment by placing a GPS device on a car without a warrant. Defendant was the target, but he’d sold and relinquished control of the car to another days later by the time of the … Continue reading