Archives
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Recent Posts
- 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
- CA7: No IAC in failure to more aggressively pursue Franks challenge
- CA9: Compelled use of fingerprint to open a cell phone didn’t violate 5A
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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)
--Overview of the Electronic Communications Privacy Act (2012)
--Outline of Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012)
--Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012)
--Federal Laws Relating to Cybersecurity: Discussion of Proposed Revisions (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: August 25, 2019
D.N.M.: SW wasn’t stale; def was doing enough to show his conduct was ongoing, and the officers didn’t even know he’d moved just before the raid
The search warrant was not stale. While there was reference to activities three months before the warrant was issued, defendant was seen coming and going from the location on the way to do drug transactions with a known drug dealer … Continue reading
UT: SW implicitly carries authority to use reasonble force to execute it; here, taking DNA
Police had a search warrant to obtain DNA. A search warrant implies that reasonable force might have to be used to execute it. A target can’t simply refuse to comply. State v. Evans, 2019 UT App 145, 2019 Utah App. … Continue reading
VT: Affidavit for arrest warrant by university police is a public record
An affidavit for an arrest warrant prepared by UV police is a public record subject to disclosure. Oblak v. Univ. of Vt. Police Servs., 2019 VT 56, 2019 Vt. LEXIS 109 (Aug. 24, 2019). The government on the totality linked … Continue reading
TN: Factual statements from other LEOs not judged as CI statements in affidavit
Relying on factual statements of other law enforcement officers for a search warrant affidavit is more than just adopting the bare conclusions of others. They are entitled to more credibility than statements of CIs. State v. Almahmmody, 2019 Tenn. Crim. … Continue reading
OH8: Cell phone not ordered returned because of its potential use in evidence
Defendant’s cell phone was still potential evidence in his retrial, so it won’t be ordered returned to him. State v. Metz, 2019-Ohio-3370, 2019 Ohio App. LEXIS 3440 (8th Dist. Aug. 22, 2019). Officers approached defendant’s house for a welfare check, … Continue reading
ND: Pole camera surveillance caught def frequenting a trailer park known for drug sales; he was stopped there with RS
Reasonable suspicion existed to detain defendant for coming into a trailer park known for its drug sales. Police had a pole camera set up recording comings and goings, and defendant had been there multiple times before. On the totality of … Continue reading
NC: Failure to prove nexus to real property in SW requires suppression
The affidavit for search warrant failed to connect defendant to the premises sufficient for there to be probable cause, and the court of appeals decision to suppress is affirmed. As to a vehicle, the officer had more information but didn’t … Continue reading
NC: On remand from Grady, lifetime monitoring of sex offense “recidivists” off parole or any community control violates 4A
On remand from Grady v. North Carolina, 135 S. Ct. 1368 (2015), North Carolina’s lifetime satellite based monitoring system is unconstitutional as applied to those “recidivists” who have completed parole and all post-release supervision. The court does not go into … Continue reading
CA11: Officer’s threat to arrest ptf for trespass if he didn’t leave a shopping center wasn’t a seizure
Police officer’s threat to arrest plaintiff for trespass if he didn’t leave a shopping center was not a Fourth Amendment seizure. Watkins v. Ramcharan, 2019 U.S. App. LEXIS 25016 (11th Cir. Aug. 22, 2019). The officer’s encounter with a parked … Continue reading
FL4: Mistakenly placed GPS on probationer isn’t suppressed under Heien and Herring
When defendant started probation, a GPS monitor was placed on him without court order by a probation employee that just assumed it was required. It wasn’t. It was an apparent violation of the Fourth Amendment, but it’s within the Heien … Continue reading
PA: Commercial truck checkpoint stops governed by Burger, not by general checkpoint rules
Checkpoint stops of commercial vehicle are government by New York v. Burger, already followed in Pennsylvania, and not other checkpoint case law. Checkpoint case law doesn’t fit with commercial vehicle inspections. Commonwealth v. Maguire, 2019 Pa. LEXIS 4704 (Aug. 22, … Continue reading