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Recent Posts
- AR: RS def rented a hotel room was sufficient for search waiver; PC not required
- LA5: No standing to challenge search of shooting victim’s cell phone in def’s possession
- N.D.Okla.: Cell phones possessed by tribal police not subject to return under Rule 41(g)
- E.D.Ark.: Landlord and tenant refused rental property inspection and SW was validly issued and protected privacy interests
- D.D.C.: Judge shopping after denial of SW inappropriate; could have appealed to DJ
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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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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: August 2018
WaPo: Google refused an order to release huge amounts of data. Will other companies bow under pressure? [Govt seeking tracking information from phone apps]
WaPo: Google refused an order to release huge amounts of data. Will other companies bow under pressure? by Deanna Paul:
CA7: City’s use of “smart meter” is a search, but it is reasonable because it’s not for criminal purposes and law enforcement never knows
The use of a smart meter to collect energy consumption in homes is a search under the Fourth Amendment under Kyllo. It is, however, a reasonable search because it is purely for the use of the power company and city … Continue reading
D.Me.: Where a couple shared a closet, her apparent authority extended to whole closet, not just his side
Defendant and his girlfriend shared a closet where they were staying, and she had apparent authority to consent to a search of the whole closet, not just her side of it. United States v. Lawson, 2018 U.S. Dist. LEXIS 137966 … Continue reading
DE: Def counsel was not ineffective for not arguing obvious typo on date justified suppression because it didn’t
The search warrant affidavit said August 3, 2015, but August was typed and the 3 written in. It’s clear from all the testimony that it was issued September 3, and the “August” wasn’t corrected. Therefore, defense counsel wasn’t ineffective for … Continue reading
cnn.com: Police use Taser on 87-year-old woman cutting dandelions with a knife
cnn.com: Police use Taser on 87-year-old woman cutting dandelions with a knife by Keith Allen: (CNN)An 87-year-old grandmother using a knife to cut dandelions in the woods near her rural Georgia home last week was taken down by a police … Continue reading
CA11: CSLI order was based on six week old precedent from this court; Davis GFE applies
This court held six weeks before the government obtained its SCA order for defendant’s CSLI that was the legal way to do it. Therefore, the good faith exception applied. “Here, the Government complied with the requirements of the SCA in … Continue reading
OH9: Dog sniff of a car in motel parking lot not a search
A dog sniff of a car on a motel parking lot was reasonable and didn’t require reasonable suspicion because there was no stop. State v. Bryner, 2018-Ohio-3215, 2018 Ohio App. LEXIS 3473 (9th Dist. Aug. 13, 2018). Police had a … Continue reading
E.D.Va.: When officer takes your license to run it, you’re seized
“Officer Myers’ instruction to ‘hang tight’ while he ran Defendant’s driver’s license [and had it in hand], would lead a reasonable person in Defendant’s shoes not to feel free to leave. Thus, the consensual encounter became a seizure under the … Continue reading
W.D.N.C.: When they had PC for rural house, entry to freeze situation was reasonable when magistrate was two hours away
After police stopped a car suspected in drug deals, they learned that the drugs came from a particular address which was used as a distribution point. They developed probable cause for the house. They were two hours away from a … Continue reading
E.D.Mo.: Federal SW for cell phone after private search then state SW was on independent source
Defendant’s cell phone was first the subject of a private search, and then a police search. The police search exceeded the scope of the private search, and that led to a state issued search warrant. The state search warrant was … Continue reading
N.D.Iowa: Inventory appears only a pretext for criminal search
Officer’s failure to follow inventory policy here created the strong inference the inventory was really a pretext for a criminal search, and the inventory is suppressed. United States v. Davis, 2018 U.S. Dist. LEXIS 137083 (N.D. Iowa Aug. 14, 2018) … Continue reading
msn.com: Chicago cops pointed guns at children while raiding the wrong address, lawsuit says
msn.com: Chicago cops pointed guns at children while raiding the wrong address, lawsuit says by Tony Briscoe:
OH2: Officer’s good faith mistake, if it was one, that def possessed a concealed weapon (a long sword), bars application of the exclusionary rule [court erroneously shifts burden]
Police got a call about a man wielding a sword, and they stopped defendant. There was probable cause for him possessing a concealed long sword [how?]. Even if the officer was wrong, it wasn’t really wrong. “Short contends that Officer … Continue reading
CA7: CI was a co-conspirator, and corroboration was required
This § 1983 case over a state court search warrant and search essentially seeks to relitigate in federal court the issuance of the warrant, which is not the prerogative of a federal court. Instead, the court finds corroboration of the … Continue reading
OH11: Specific and articulable facts, including bullet casings in front of house and bullet holes in house, supported an entry an hour later
“[T]he officers had a reasonable belief based on specific and articulable facts to search for injured people” based on bullet casings in the street and bullet holes in the house even when the waited an hour. They didn’t have to … Continue reading
D.P.R.: The fact the police statements weren’t the same doesn’t mean there’s a Franks violation or no PC
The officer’s statement wasn’t inconsistent with the reports of others and didn’t support a Franks claim. It’s entirely possible that the reports of others were all true and merely reported different observations than the officers. Therefore, no Franks violation. United … Continue reading
NJ: Dash cams videos not “records required to be kept” for FOIA but remanded for whether there is a common law right of access
Dash cam videos are not public records under the state open records law because they are not required by law to be kept. There might, however, be a common law right of access, and the case is remanded for a … Continue reading