Archives
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Recent Posts
- D.N.M.: Three Franks challenges, one successful
- FL1: Violation of state knock-and-announce statute requires suppression; Hudson not followed
- N.D.Ala.: All parts of a SW are read in context, and that narrows it so it’s not overbroad
- WA: No immediate bail for DV arrest violates neither 4A nor due process
- S.D.N.Y.: Overseas seizure of Russian oligarch’s megayacht not governed by 4A
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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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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: August 2018
OH5: Def’s wallet was placed on roof of car during patdown; after PC developed under automobile exception, it was subject to search, too
When defendant got out of the car during the stop, the officer ordered him to put down his cell phone and wallet that were in his hands, and he put them on the roof. Inside the car, the officer saw … Continue reading
D.Conn.: Def didn’t provide an affidavit of his standing, but his offer of proof and then actual proof showed it
Defendant claimed for trial that while he was a visitor at the premises searched under the warrant, he still had standing because he was a guest there and a paying tenant at times. He didn’t provide an affidavit, but he … Continue reading
D.D.C.: Overdetention claim doesn’t lie under 4A but does under 5A
Plaintiff’s overdetention claim doesn’t lie under the Fourth Amendment but it does under the Fifth. “According to Jones, strip searching an inmate who has been ordered released before returning that inmate to the general population violates the Fourth Amendment unless … Continue reading
IN: Order compelling owner of iPhone to unlock it violates 5A self-incrimination; the state is seeking to extract information from her mind
Defendant claimed she’d been sexually assaulted by her boyfriend. In investigating that, it turned into a stalking and harassment investigation of her. The state got a search warrant for her phone. When she wouldn’t unlock it, they sought a court … Continue reading
D.Conn.: Warrantless CSLI obtained three years before Carpenter would not be excluded under Davis
Warrantless CSLI obtained three years before Carpenter would not be excluded under Davis. United States v. Blake, 2018 U.S. Dist. LEXIS 141895 (D. Conn. Aug. 20, 2018). “Here, Rivarola does not explain what, if anything, further investigation by his prior … Continue reading
techdirt: Researcher Says Police Body Cameras Are An Insecure Mess
techdirt: Researcher Says Police Body Cameras Are An Insecure Mess by Tim Cushing: The promise of transparency and accountability police body cameras represent hasn’t materialized. Far too often, camera footage goes missing or is withheld from the public for extended … Continue reading
VT: NCMEC email search not private search (following CA10)
Defendant’s ISP was not acting as a government agent under the Fourth Amendment when it searched the transmissions defendant sent over its network. It monitored them based on its own business interest, not because it was encouraged to or directed … Continue reading
N.D.Ind.: Protective sweep doesn’t require actual knowledge somebody else is inside
The officers conducting a protective sweep do not have to know that there’s somebody else inside. The question is whether it is reasonable on the totality. They can rely on their experience in drug cases, defendant’s priors for drugs, and … Continue reading
CA9: Entry in violation of an order of protection denies def standing
A person on premises in violation of an order of protection, even with an invitation, has no standing to challenge police action there. As long ago as 1979, the Ninth Circuit held it was frivolous for a trespasser to argue … Continue reading
W.D.Ark.: When challenging SW, def has burden of pleading to attach the SW and affidavit to the motion to suppress
When challenging a search warrant, the defendant needs to attach the warrant and affidavit to the motion to suppress. The government did instead. Here, the search warrant wasn’t even needed because there was probable cause for a vehicle search under … Continue reading
CA5: Franks violation states 4A claim with no qualified immunity
Defendant stated a Fourth Amendment claim for false arrest by a false affidavit for arrest, and the statute of limitations started to run on defendant’s acquittal. A Franks violation generally defeats qualified immunity. Winfrey v. Rogers, 2018 U.S. App. LEXIS … Continue reading
S.D.Ind. erroneously states there is a “presumption of good faith reliance” on a SW
Assuming there is no probable cause, the court instead decides the question of application of the good faith exception, erroneously putting the burden on the defendant to overcome the good faith exception, not putting on the government to prove the … Continue reading
E.D.Tex.: RS for stop was based on listening to wiretap
Listening live to wiretap, one officer contacted another for a stop based on a drug transaction occurring. This was reasonable suspicion even if there was no reasonable suspicion from a traffic stop. United States v. Jenkins, 2018 U.S. Dist. LEXIS … Continue reading
TN: DUI checkpoint invalid: No advance warning, no bidirectional stopping, bad planning because traffic backed up right away, didn’t follow procedures
“The State has failed to show that the checkpoint was established and operated in accordance with predetermined operational guidelines or with supervisory authority that minimized the risk of arbitrary intrusion on liberty and limited the officers’ discretion at the scene.” … Continue reading
Crime Report: Militarized Policing Harms Police Reputation: Study
Crime Report: Militarized Policing Harms Police Reputation: Study by Megan Hadley: The use of Special Weapons and Tactics (SWAT) teams and other forms of ‘militarized policing’ doesn’t deter violent crime or provide the safety benefits (either to the public or … Continue reading
CA11: Use of a “sniffer” to locate CP on a computer not mentioned in the SW not unreasonable search
Use of a sniffer device to search defendant’s computers at Emory University was not unreasonable just because the search warrant didn’t mention using it. United States v. Sullivan, 2018 U.S. App. LEXIS 23315 (11th Cir. Aug. 21, 2018).* Defendant was … Continue reading
CA2: 2011 CSLI seizure by SCA order valid under GFE
Defendant was convicted of international parental kidnapping. CSLI was obtained in 2011 by an order under the SCA without probable cause. The good faith exception applies. United States v. Zodhiates, 2018 U.S. App. LEXIS 23278 (2d Cir. Aug. 21, 2018):
VT reaffirms state const’l REP in posted open fields
Vermont’s state constitution grants a reasonable expectation of privacy to open fields posted with no trespassing signs. A game warden (vested by state law with all law enforcement powers) violated defendant’s reasonable expectation of privacy by entering upon his posted … Continue reading
OH6: Traffic stop led to finding outstanding warrants and led to valid search of car, without even trying to tell us how
Defendant was lawfully stopped for a lane violation. Running his DL led to finding outstanding warrants. “Having ascertained appellant’s identity and outstanding felony warrants, a lawful search led to the discovery of appellant’s unlawful drugs and firearm.” [What was the … Continue reading
KY: SW not invalid because the color of door was wrong; finding gun during search for drugs not unreasonable
“Appellant specifically argues that the warrant was defective because it incorrectly described the front door to his residence as black when, in fact, the door was brown. Appellant’s first name was also misspelled in the warrant. However, neither of these … Continue reading