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- D.Mont.: 30-day delay in getting SW for seized storage building not unreasonable
- E.D.Cal.: Smell of MJ still PC in a California National Park even though not under state law
- CA10 dissent: Bivens on its last legs
- VA: Consent to look in backpack permitted search of pill bottle
- NY3: Warrantless arrest body cavity search was unreasonable
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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)
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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 2018
N.D.Cal.: Court orders target to open computer and phones under All Writs Act; no privilege bars order
Police seized a computer, hard drive, and iPhone that had been encrypted and password protected. The FBI couldn’t get in. The government applies for an order under the All Writs Act. The court finds that the Fifth Amendment testimonial privilege … Continue reading
IA: IAC Franks claim was speculative; def claims no facts at all
Defendant filed an ineffective assistance of counsel claim alleging that if defense counsel had investigated the officer’s allegations he’d have found a Franks challenge. This was purely speculative because not a word was provided about what such an investigation would … Continue reading
W.D.Mo.: Trespassing on a shopping center parking lot after being told to leave was RS
Officers went to a shopping center parking lot to roust people meeting in the parking lot that they suspected were gang members. Defendant was told to leave, and he drove around and didn’t. The stop of his car was based … Continue reading
E.D.N.C.: Mere disagreement with state court conclusion on 4A claim doesn’t overcome Stone v. Powell bar
Defendant litigated his search in state court and lost in the trial court and on appeal. He filed a habeas petition. “Petitioner’s disagreement with the ultimate disposition of his Fourth Amendment claim does not indicate he was not given a … Continue reading
Reason: Detroit to Pay $225000 After Cops Shoot Three Dogs in Marijuana Raid
Reason: Detroit to Pay $225000 After Cops Shoot Three Dogs in Marijuana Raid by C.J. Ciaramella The settlement is the latest big payout in a string of lawsuits over dog shootings by Detroit police.
Slate: Congress Put the CLOUD Act in Its Spending Bill. What Does That Mean For Data Privacy?
Slate: Congress Put the CLOUD Act in Its Spending Bill. What Does That Mean For Data Privacy? by Aaron Mak:
CA5: GFE applies to Texas DPS officers accessing E911 data to locate his phone with a court order (third opinion in case)
The good faith exception applies to Texas DPS officers accessing E911 data to locate his phone with a court order. [This is the third opinion in the case, and rehearing en banc was denied on a 7-8 vote.] United States … Continue reading
E.D.Ky.: “[W]hen officers rely on a judicially secured warrant, they are generally entitled to qualified immunity.”
“In search and seizure cases, when officers rely on a judicially secured warrant, they are generally entitled to qualified immunity.” Plaintiff claimed false information was provided for the warrant, but he fails in his burden of showing a fact question … Continue reading
IN: Landlord saw blood in the property and called the police; this was a valid emergency entry
Defendant was an emergency contact on the property, but he lived in Chicago, not at the apartment. Therefore, he had no standing. On the merits, the landlord checked on the property and saw blood stains inside. He called police for … Continue reading
CA3: Affidavit for SW was fair on its face and showing of PC, so officer gets QI for execution
The officers had qualified immunity for execution of a search warrant application that was fair on its face. It could be relied upon by a reasonable officer. Olson v. Ako, 2018 U.S. App. LEXIS 6958 (3d Cir. Mar. 20, 2018):
U.S. News & World Report: AP Explains: How a Phone May Have Steered Hunt for Bomber
U.S. News & World Report: AP Explains: How a Phone May Have Steered Hunt for Bomber by Michael Liedtke:
Courthouse News Service: ACLU Asks Greyhound to Stop Letting Customs Officers Harass Passengers
Courthouse News Service: ACLU Asks Greyhound to Stop Letting Customs Officers Harass Passengers by David Lee:
Tennessean: Opinion | Tennessee Supreme Court must resist chipping away at Fourth Amendment rights
Tennessean: Opinion | Tennessee Supreme Court must resist chipping away at Fourth Amendment rights by David L. Hudson:
OH12: 911 call about OD permitted seizure of drugs and paraphernalia in plain view
Officers responded to a 911 call about an overdose. When they got in the house, drugs and paraphernalia were in plain view, and they could be seized. State v. Pettiford, 2018-Ohio-1015, 2018 Ohio App. LEXIS 1073 (12th Dist. Mar 19, … Continue reading
TN: After def’s arrest for assault with a knife, the apparent weapon was seen in plain view in def’s car
Defendant had been arrested after a stop for aggravated assault with a knife. When the officer looked in the car to secure it, he saw a knife in plain view, and its seizure was reasonable. State v. Stanley, 2018 Tenn. … Continue reading
CA6: Def’s car was still “mobile” for automobile exception despite the fact he was in jail
Defendant’s car was still “mobile” for Fourth Amendment purposes under the automobile exception despite the fact he was in jail. Thus, the defective search warrant is moot. United States v. Spillman, 2018 U.S. App. LEXIS 6950 (6th Cir. Mar. 19, … Continue reading
CA6: A controlled delivery as a part of the PC essentially moots a Franks claim
2255 petitioner’s post-conviction Franks claim fails because there was a controlled delivery that essentially moots it. There was no “substantial preliminary showing” under Franks. COA denied. Fleming v. United States, 2018 U.S. App. LEXIS 6934 (6th Cir. Mar. 20, 2018). … Continue reading
W.D.Va.: Prisoner suit for recording attorney-client meetings survives 6A claim but 4A denied on QI
Plaintiff, a prison inmate, had his conversations with his lawyer in trial preparation recorded by prison officials. He sued for interference with his right to counsel and for a Fourth Amendment violation. Defendant’s summary judgment motion is denied on the … Continue reading
NYTimes: Opinion: Facebook’s Surveillance Machine
NYTimes: Opinion: Facebook’s Surveillance Machine by Zeynep Tufekci: Facebook makes money, in other words, by profiling us and then selling our attention to advertisers, political actors and others. These are Facebook’s true customers, whom it works hard to please.
NYTimes: ‘Testilying’ by Police: A Stubborn Problem
NYTimes: ‘Testilying’ by Police: A Stubborn Problem by Joseph Goldstein Police lying persists, even amid an explosion of video evidence that has allowed the public to test officers’ credibility.