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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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--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: April 2019
KY: Possession of MJ on one’s person away from home doesn’t create exigency for search of house
Defendant’s possession of marijuana on his person away from his house didn’t create exigent circumstances for a search of it. Giles v. Commonwealth, 2019 Ky. App. LEXIS 6= (Apr. 12, 2019). Installation of an electronically read gas meter was a … Continue reading
Business Week: A Researcher Needed Three Hours to Identify Me From My DNA
Business Week: A Researcher Needed Three Hours to Identify Me From My DNA by Kristen V Brown: Using just my DNA, a genealogist was able to identify me in three and a half hours. It wasn’t hard. I’d previously sent … Continue reading
DE: SW for cell phone’s movements didn’t authorize complete search of the phone’s contents
The probable cause for the search warrant of defendant’s cell phone was only for specific location information. “However, the search warrant authorizes a search and seizure of information broader than GPS location information. Specifically, the search warrant allows the State … Continue reading
ND: State failed to show abandonment of apparently lost cell phone with screen locked
The trial court erred in denying defendant’s motion to suppress because the State did not meet its burden of showing that defendant intentionally abandoned his cell phone. Although the phone was found lying in a parking lot in front of … Continue reading
ND: 14 hour old information for a probation search was not stale
14 hour old information for a probation search was not stale. State v. Stenhoff, 2019 ND 106 (Apr. 11, 2019). Defendant didn’t preserve his search issues for appeal under state law. “In attempting to reserve the question of whether Defendant … Continue reading
CA9: Call from jail to def’s cell phone advising him to have another flee was PC for phone
A jail phone call to defendant’s cell phone telling him to tell another to flee was probable cause for a search of the phone. United States v. Carter, 2019 U.S. App. LEXIS 10906 (9th Cir. Apr. 12, 2019).* Officers acted … Continue reading
Collins v. Virginia on remand: GFE saves the search
Collins v. Virginia on remand: The good faith exception applies to sustain the search because no reasonably well trained officer would have known that automobile exception would apply on the curtilage in the garage. Collins v. Commonwealth, 2019 Va. LEXIS … Continue reading
ND: Trash search corroborated anonymous tip and provided PC
Acting on an anonymous tip that defendant had obtained a fair amount of marijuana and brought it back to town, police did a trash search and found significant corroborating evidence that he’d have marijuana in the house. The court distinguishes … Continue reading
KS: When welfare check showed no issues, it was unreasonable to run def’s DL
Officers encountered defendant for a welfare check. When it was obvious he was not in need of any help, it was unreasonable to keep his DL and run it for warrants. Strieff does not apply. State v. Manwarren, 2019 Kan. … Continue reading
Engadget: Google faces surge in police requests for mobile location data
Engadget: Google faces surge in police requests for mobile location data by Jon Fingas:
AK: SW for all computer stuff in house associated with IP address was reasonable in child porn case
A child pornography search warrant for all computer stuff in the house associated with a particular IP address wasn’t directed at defendant–it was for the IP address to identify the potential user. Seizing all computer related stuff in the house … Continue reading
PA: Officer safety was not presumed to be exigency where def did nothing to warrant fear he’d use a weapon by merely refusing consent and walking away
Exigency of officer safety did not permit officers to search defendant’s garage. They came without a search warrant to arrest a third person. Defendant denied anyone else was there, refused to consent to a search, and turned and walked away. … Continue reading
M.D.Pa.: Carpenter does not qualify for retroactive effect to obtaining CSLI in 2013
Carpenter does not qualify for retroactive effect to obtaining CSLI in 2013. United States v. Davis, 2019 U.S. Dist. LEXIS 63314 (M.D. Pa. Apr. 12, 2019):
D.Mont.: Omission of def’s acquittal in a somewhat related case before the SW was issued was a Franks violation, but adding it in still leads to PC
The affidavit for search warrant omitted that defendant had been tried and acquitted of incest shortly before. Recasting the affidavit to include that fact, however, still leads to probable cause. “The Court determines that probable cause remains even after the … Continue reading
MA: Six month old info of possession of a gun requires something else to show it was ongoing to not be stale
A single firearm seen in the house six months before the search warrant was sought, without some evidence possession was ongoing, wasn’t enough to overcome staleness. Commonwealth v. Hart, 2019 Mass. App. LEXIS 43 (Apr. 11, 2019):
NYT: Tracking Phones, Google Is a Dragnet for the Police The tech giant records people’s locations worldwide. Now, investigators are using it to find suspects and witnesses near crimes, running the risk of snaring the innocent.
NYT: Tracking Phones, Google Is a Dragnet for the Police The tech giant records people’s locations worldwide. Now, investigators are using it to find suspects and witnesses near crimes, running the risk of snaring the innocent. by Jennifer Valentino-DeVries Gizmodo: … Continue reading
CA5: QI granted officer who detained business owner for 4 hrs for civil violation
Detaining a business owner for four hours for civil violations and pulling a gun wasn’t clearly established as a Fourth Amendment violation, so the officer gets [away with it by getting] qualified immunity. Okorie v. Crawford, 2019 U.S. App. LEXIS … Continue reading
TX10: Exigency and protective sweep justified entry after a shooting
“The evidence presented at the suppression hearing, when viewed in the light most favorable to the trial court’s ruling, supports the denial of Weems’s motion to suppress based on either the exigent-circumstances or protective-sweep doctrines. … Specifically, once Taylor opened … Continue reading
CA6: Medical clinic wasn’t “permeated with fraud” justifying an “all records” seizure, but SW was particular enough for a substantial seizure
The district court held that the defendant’s medical clinic was “permeated with fraud” justifying an “all records” seizure. The court of appeals disagrees. There was a fair amount of potential fraud, but it wasn’t obvious. Still, the warrant had particularity … Continue reading
W.D.Pa.: Def’s effort to make a felony stop fit under Rodriguez fails
Despite his lack of standing, defendant seeks to cast this automobile exception search as having its genesis in an overlong traffic stop, thus unreasonable under Rodriguez. This was not just a traffic stop; it was a felony stop, and the … Continue reading