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- Topeka Capital-Journal: Kansas sets higher bar for police seizure after accusations of for-profit policing
- E.D.Wis.: SW for cell phones allowed seizure of others found on premises
- CA6: No QI for shooting a man obviously surrendering
- DE: Officers approaching men on a stoop at night with a police dog saying “nobody move” was a seizure
- E.D.N.Y.: To get CSLI, there must be some showing the phone was involved in the crime
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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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Daily Archives: May 11, 2019
PA: Smell of burnt marijuana during a traffic stop is not PC to search the trunk of the car
The smell of burnt marijuana during a traffic stop is not probable cause to search the trunk of the car. Commonwealth v. Scott, 2019 PA Super 154, 2019 Pa. Super. LEXIS 459 (May 10, 2019):
KS: DMV can apply exclusionary rule to DL suspensions from bad stop
Petitioner’s stop was without reasonable suspicion, and the DMV can apply the exclusionary rule in the administrative proceeding. Jarvis v. Kansas Dep’t of Revenue, 2019 Kan. App. LEXIS 27 (May 10, 2019). “Regardless of whether defendant made a valid waiver … Continue reading
LA: Failure to show PC for medical records required suppression
“The district court erred in denying defendant’s motion to suppress despite finding that the officers failed to articulate probable cause in their search warrant application to subpoena defendant’s medical records. A search warrant application must contain within its four corners … Continue reading
PA: Cell phone left recording in a college coed bathroom was treated as abandoned property despite intention to return later
Defendant hid a recording smartphone in a coed bathroom at Villanova University that a female student found and turned over to the University Police. The phone was essentially abandoned even though he intended to return to recover it later, and … Continue reading
S.D.Ohio: Def who left property in sister’s house without plan to ever return lacked standing, and she had apparent authority to consent
Defendant stored property with his sister in her house for extended periods of time. Here, he lacked standing to challenge the search of his stuff in her house, and she had apparent authority to consent to the search. United States … Continue reading
N.D.Cal.: Govt can’t show PC for search of cell phone, and GFE doesn’t apply either
The search warrant for defendant’s cell phones had inserted “no charge at this time” for the crime under investigation. The phone was seized without a warrant from a traffic stop, then searched under the warrant, but you can’t tell what … Continue reading
NJLJ: Must a Criminal Defendant Turn Over Cellphone Passwords? NJ Supreme Court Will Decide
NJLJ: Must a Criminal Defendant Turn Over Cellphone Passwords? NJ Supreme Court Will Decide by Suzette Parmley:
W.D.Ky.: Complete failure of nexus was no PC and even GFE won’t save it
The affidavit for search warrant here fails to show nexus to defendant’s property. Moreover, it can’t even be inferred from the CI’s statements. “The affidavit presently before this Court offers no such supplemental information. The affidavit does not describe a … Continue reading
W.D.Wash.: In CP case, even spreadsheets on a computer can be searched for images
When child pornography is the subject of a search warrant for a cell phone, search of the entire cell phone is permitted. As to a computer, even spreadsheets are subject to search because it’s possible to hide images there. United … Continue reading