Archives
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Recent Posts
- IA: Court ordered privilege review of search was at its expense
- D.Kan.: Preservation request under SCA isn’t a search or seizure
- UT: RS on a prior day was not RS for stop on day in question
- CA2: Ptf alleged invasion of privacy for 4A violation, and that’s enough
- MA: Mere denial is not a “substantial preliminary showing” for Franks
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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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Section 1983 Blog -
"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: May 2018
NY1: REP in a bathroom with door closed but unlocked
A person in a bathroom without a lock on the door with the door shut has a reasonable expectation of privacy. Police opening the door violated that expectation. People v. Vinson, 2018 NY Slip Op 03437, 2018 N.Y. App. Div. … Continue reading
Cal.1st: Cell phone probation search condition not unreasonable; def to rid self of gang affiliations
An electronic search condition of probation is not per se unreasonable under Riley. Here, it was reasonable to show whether defendant ridded himself of his gang affiliations which was a condition of probation. People v. Guzman, 2018 Cal. App. LEXIS … Continue reading
WY: Patdown led to plain feel of drugs in watch pocket
During a patdown, the officer felt what was likely drugs in the “coin pocket” (called a watch pocket) and it was immediately apparent to him. Therefore, plain feel applied. Maestas v. State, 2018 WY 47, 2018 Wyo. LEXIS 49 (May … Continue reading
CA4: Forensic border search of cell phone “non-routine” but GFE applies
An intensive forensic search of an outbound noncitizen’s cell phone required at least reasonable suspicion and maybe a warrant under Riley. Case law, however, uniformly says not at the time this happened, so the search is valid under the good … Continue reading
CA11: Interrupted residential burglary is exigency for police entry and search
“Police officers interrupt what they reasonably believe to be a residential burglary and detain two suspects just outside the house. Having done so, can the officers thereafter lawfully enter the home—without a warrant, and without further suspicion of wrongdoing—to briefly … Continue reading
VA: Stop outside officer’s jurisdiction not subject to suppression
Defendant was seen speeding by a VMI police officer who followed him. The actual stop was off the campus. There was probable cause for the stop and arrest, and, even if the officer was outside his jurisdiction, suppression is not … Continue reading
D.Minn.: 5 uncorroborated anonymous callers wasn’t PC
Five anonymous callers claimed defendant was selling drugs. “The Government’s argument is unavailing because, as [USM] Judge Brisbois observed, ‘[i]t is objectively unreasonable for an officer with over 10 years of experience to present a search warrant affidavit to a … Continue reading
OH12: Def’s claim judge didn’t sign SW has zero evidentiary support
The defendant contended that the judge’s signature on the search warrant was false. The only testimony at the suppression hearing was that the judge signed it at home. The evidence supports the trial court’s finding. State v. Clayton, 2018-Ohio-1777, 2018 … Continue reading
WaPo: She saved thousands to open a medical clinic in Nigeria. U.S. Customs took all of it at the airport.
WaPo: She saved thousands to open a medical clinic in Nigeria. U.S. Customs took all of it at the airport. by Meagan Flynn: The questioning threw her off guard. She explained she had legally earned the money and she was … Continue reading
CA4: Common hallway of apartment building not curtilage under Jardines
“[T]he common hallway of the apartment building, including the area in front of Makell’s door, was not within the curtilage of his apartment” under Jardines. United States v. Makell, 2018 U.S. App. LEXIS 12016 (4th Cir. May 8, 2018). There … Continue reading
W.D.Okla.: SW for vehicles and “appurtenances” didn’t include a car and camper 100′ from house off the curtilage
The search warrant for defendant’s dwelling included vehicles and “appurtenances” on the land. Defendant’s vehicle and camper were about 100′ from the dwelling, and the court finds they were not on the curtilage of the dwelling. Moreover, the good faith … Continue reading
ACLU: Roadside Saliva Testing Is Probably Unconstitutional
ACLU: Roadside Saliva Testing Is Probably Unconstitutional by Chloé White
S.D.N.Y.: Envelopes seen in plain view during arrest suggested drug proceeds and was valid plain view
Officers had an arrest warrant and took defendant into custody. A protective sweep was done and plain view observations were made, including cash in envelopes. The plain view, but without mention of the cash, was used to get a search … Continue reading
D.Alas.: Consent to search doesn’t include destruction of property in the search
The government got consent to search a package for drugs. That consent did not include cutting a candle in half to find the drugs. Consent to search doesn’t include destruction of property. United States v. Swenton, 2018 U.S. Dist. LEXIS … Continue reading
N.D.Ga.: No 4A requirement of a computer search protocol in the SW
This search warrant was for steroids and misbranded drugs and included computers and defendant’s home. The warrant was issued with probable cause and was as particular as possible. As to the computer search, there was no constitutional requirement for a … Continue reading
ArkTimes.com TANF drug-testing program cost Arkansas $32,000 to test five people in 2017
ArkTimes.com TANF drug-testing program cost Arkansas $32,000 to test five people in 2017 by Benjamin Hardy (two tested positive):
NYTimes: In Fight Against Violent Crime, Justice Dept. Targets Low-Level Gun Offenders
NYTimes: In Fight Against Violent Crime, Justice Dept. Targets Low-Level Gun Offenders. In my district, through the end of March, 200 cases were filed. Normally, 100. Granted, there are many multi-defendant cases, but the AUSAs told me that they’re taking … Continue reading
CA10: A verbal judicial order to enter a house to take a child into custody is the equivalent of a warrant
A verbal judicial order to enter a house to take a child into custody is the equivalent of a warrant. Duran v. Muse, 2018 U.S. App. LEXIS 11481 (10th Cir. May 3, 2018). Motion to suppress was untimely and denied … Continue reading
D.N.M.: Protective sweep valid to look for other pressure cooker bombs; parent has presumptive apparent authority to consent to search of adult child’s room
Defendant was suspected of making a pressure cooker bomb, which was found. (1) A protective sweep was proper to determine whether there were others in the house. (2) The house was owned by defendant’s father, and defendant merely lived there. … Continue reading