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- D.Mont.: 30-day delay in getting SW for seized storage building not unreasonable
- E.D.Cal.: Smell of MJ still PC in a California National Park even though not under state law
- CA10 dissent: Bivens on its last legs
- VA: Consent to look in backpack permitted search of pill bottle
- NY3: Warrantless arrest body cavity search was unreasonable
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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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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: June 2019
MN: Search of rented room in single family dwelling was reasonable under SW; it wasn’t apparent it was rented
In a stipulated evidence suppression hearing, defendant did not preserve the issue he presents for appeal. Going to the merits anyway, defendant claimed that his rented room in what was, for all appearances, a single family dwelling was reasonable. The … Continue reading
The Crime Report: Stop and Fix? How the ‘High-Crime Area’ Defense Has Licensed Bad Policing
The Crime Report: Stop and Fix? How the ‘High-Crime Area’ Defense Has Licensed Bad Policing by James M. Doyle:
WaPo: Goodbye, Chrome: Google’s web browser has become spy software
WaPo: Goodbye, Chrome: Google’s web browser has become spy software by Geoffrey A. Fowler: Our latest privacy experiment found Chrome ushered more than 11,000 tracker cookies into our browser — in a single week. Here’s why Firefox is better.
WaPo: Hacked documents reveal sensitive details of expanding border surveillance
WaPo: Hacked documents reveal sensitive details of expanding border surveillance by Drew Harwell: Far more information was taken in the hack of a Customs and Border Protection contractor than U.S. officials have acknowledged.
D.Mass.: ICE civil immigration arrests at Boston state courthouse enjoined
In a case brought by the Suffolk County DA in Boston, ICE is ordered to not civilly arrest witnesses and defendants at the courthouse. At common law, witnesses were immune from civil arrest at court. The court finds nothing in … Continue reading
D.Mont.: Locked gun safe in house subject to parole search condition
A locked gun safe was subject to a parole search condition. United States v. Crawford, 2019 U.S. Dist. LEXIS 104527 (D. Mont. June 21, 2019). The facts and circumstances of this case show probable cause for obtaining DNA from defendant … Continue reading
CA8: Failure to knock-and-announce not a suppression issue
“[T]he officers’ alleged violation of the knock-and-announce rule had nothing to do with their seizure of the gun, drugs, and cash in Diaz-Ortiz’s hotel room pursuant to their search warrant.” Relief is barred by Hudson. United States v. Diaz-Ortiz, 2019 … Continue reading
LA3: State showed abandonment of car at hearing even though trial court decided on other grounds
The state argued and showed abandonment, but the trial court didn’t decide it. On appeal, the court finds that defendant abandoned his car after a police chase and he bailed out of the car and ran. State v. Guidry, 2019 … Continue reading
PA: Franks challenge fails for failure to plead
Defendant’s Franks challenge fails for failure to even plead enough. “Appellant never alleged that the police made deliberately false statements or made statements with a reckless disregard for the truth in asserting that McKnight had witnessed the shooting.” Commonwealth v. … Continue reading
OH4: In applying GFE, court isn’t bound by the “four corners” rule because Leon requires “all the circumstances” be considered
The affidavit for search warrant was lacking probable cause, but it wasn’t “so lacking” that the good faith exception did not apply. Also, the “four corners” rule doesn’t bar a trial court from considering “all the circumstances” in deciding whether … Continue reading
C.D.Ill.: Evidence used at trial not subject to return under Rule 41(g)
That which was used as evidence at trial is not yet subject to return under Rule 41(g). The government responded by affidavit. United States v. Hathaway, 2019 U.S. Dist. LEXIS 104035 (C.D. Ill. June 21, 2019). “It was error as … Continue reading
KS: Trial court’s finding of probable racial bias in stop was supported by record
The district court’s finding that the Kansas statute on racial bias in stops was violated is supported by the record. State v. Gill, 2019 Kan. App. LEXIS 40 (June 21, 2019):
D.Minn.: A court order doesn’t have to be called a “search warrant” to be one; CSLI order issued with PC
The CSLI order in this case was based on probable cause. It didn’t say “search warrant,” but it doesn’t have to to be one. In any event, the good faith exception was satisfied. United States v. Stachowiak, 2019 U.S. Dist. … Continue reading
ME: No standing in co-conspirator’s CSLI even when they were tracked together
Defendant lacked standing to contest the CSLI acquisition of his co-conspirator’s cell phone when the police were looking for both. The same rule applies to his Fourth Amendment claim and his claim under Maine’s Electronic Device Location Information Act. State … Continue reading
Cal.5: An unlawful arrest is not per se with excessive force under the 4A
An unlawful arrest is not per se with excessive force under the Fourth Amendment or state statute. People v. Perry, 2019 Cal. App. LEXIS 555 (5th Dist. June 18, 2019). The trial court’s finding that the police didn’t search defendant’s … Continue reading
MT: 911 call about drunk driver was corroborated when car found
A 911 call reported a potential drunk driver. When the car was found, the officer’s observations were at least reasonable suspicion justifying a stop. Indreland v. Mont. DOJ, 2019 MT 141, 2019 Mont. LEXIS 226 (June 18, 2019). Defendant was … Continue reading
N.D.Ind.: No REP in an open office where others were free to come and go and document was taken at police insistence
Here the court considers a post-verdict motion to suppress. The court noted that there were kernels of cause for a motion to suppress, albeit a private search of an office, but the complete picture didn’t develop until trial. Giving he … Continue reading
CA8: Lack of knock-and-announce for parole search gets QI despite fact no case says it’s lawful; no “robust consensus of cases of persuasive authority”
Plaintiff absconded parolee was subjected to an unannounced entry into his hotel room about 6 am for a parole search. He was in bed with his girlfriend and a gun. The Arkansas Supreme Court held the entry violated the Fourth … Continue reading
MA: SW in ongoing criminal enterprise was based on “powerful evidence”
“A Superior Court judge erred in granting a criminal defendant’s pretrial motion to suppress evidence seized by police from the defendant’s home and place of business, where the affidavit in support of the search warrants contained sufficient information to justify … Continue reading
FL1: Recognizing conflict in many courts on compelled password production, court takes a middle ground: state must show what it wants with “reasonable particularity”
“To what extent does the Fifth Amendment right against self-incrimination protect a suspect in a criminal case from the compelled disclosure of a password to an electronic communications device in the state’s possession? Courts differ in their legal analysis of … Continue reading