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- W.D.Ark.: Parole search waiver moots lack of PC argument
- AR: RS shown for boating while intoxicated stop
- W.D.Mo.: Wrong address in SW wasn’t fatal where right house was searched
- NY: Failure to show independent source for officer’s observation of def required reversal
- VA: Outline of a gun in def’s pocket was RS
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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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Monthly Archives: September 2019
PA: SW for entire house for activities of one living there included roommate’s separate room
“We granted discretionary review to determine whether a search warrant for an entire multi-bedroom residence shared by appellant, Dylan Scott Turpin, and his roommate, Benjamin Kato Irvin, was constitutionally permissible under the Fourth Amendment to the United States Constitution and … Continue reading
E.D.N.Y.: Given a 4A violation for lack of particularity, subjective good faith isn’t good enough for GFE
There was a failure of particularity in this document search warrant, which the government effectively concedes, and it falls back to the good faith exception to save it. The court concludes, however, in a long analysis, that the deterrent benefits … Continue reading
NYTimes: Opinion: How Mandatory Minimums Enable Police Misconduct
NYTimes: Opinion: How Mandatory Minimums Enable Police Misconduct by Scott Hechinger (“They drastically limit accountability for those with the power to take away a person’s liberty.”)
AK: Inadequate briefing and failure to get ruling on 4A issue below is waiver
“To the extent Kuller is attempting to raise a Fourth Amendment challenge to his probation conditions, this claim is waived due to inadequate briefing. … We also note that Kuller never directly raised a Fourth Amendment claim below and the … Continue reading
W.D.Mo.: Search incident permitted for offense of walking in the street at night
Search incident for walking in the street instead of on the sidewalk was permissible and that produced keys. Alternatively, officers had reasonable suspicion for a “protective patdown” based on other factors. United States v. Cunningham, 2019 U.S. Dist. LEXIS 164331 … Continue reading
S.D.W.Va.: The single question “are there any weapons in the car” doesn’t extend the stop in violation of Rodriguez
“Even assuming here that the single question, whether there were any weapons in the car, was not related to the mission of the traffic stop, the question did not violate the Fourth Amendment because it did not lengthen the traffic … Continue reading
N.D.Fla.: No 4A requirement a car left in a parking lot on def’s arrest couldn’t be towed and inventoried
The driver of the vehicle was a serial violator of the state statute on driving on a suspended license. When he was caught this time, the vehicle was on a parking lot and the officer elected to have it towed, … Continue reading
CA3: Smell of burnt MJ and passenger rolling a blunt warranted stop and frisk for weapons
Defendants’ stop and frisk was reasonable. Their car was parked in a convenience stop parking lot, the motor was running, and the driver was apparently inside. The passenger was rolling a blunt, suggesting more marijuana in the car, and the … Continue reading
GA: Downloading entire cell phone in rape case where time line and text messages were only issues wasn’t prejudicial
Defendants were arrested for kidnapping and raping an unconscious woman they took out of a Savannah nightclub, and they were caught in the act when a bystander called the police. Police seized one cell phone after the interrogation and got … Continue reading
CA11: Ptf arrested on incorrect computer entry had 4A rights violated, but defs get QI
Plaintiff paid his fine for a speeding ticket and that was to avoid probation. The probation officer was in court and heard all that. Some clerk, however, entered into the computer system that he was on probation. Plaintiff was later … Continue reading
IN: In a probation search of one under home confinement, only common areas or def’s specific area can be searched; MJ and gun found in common area
Defendant was placed on home confinement as a result of his conviction, and there was a search waiver provision. He was living in someone else’s house. Assuming only the common areas and those under defendant’s specific control are subject to … Continue reading
Felony charges in Alameda Co. for LEO recording call between juvenile suspects and their lawyers
SF Chronicle: Judge moves forward felony eavesdropping case against Alameda sheriff’s sergeant by Megan Cassidy (“A judge on Tuesday denied an Alameda County Sheriff’s sergeant’s request to reduce his four felony eavesdropping charges to misdemeanors and moved the case forward … Continue reading
N.D.Cal.: Order to use biometric information to unlock a device is testimonial and barred by 5A
A USMJ in the N.D.Cal. holds that the use of a court order to compel any biometric information (fingerprint, facial recognition, eye scan) is testimonial and violates the Fifth Amendment. United States v. Sealed Warrant, 2019 U.S. Dist. LEXIS 147836 … Continue reading
The Atlantic: Federal Officials Should Be Accountable for Their Wrongdoing
The Atlantic: Federal Officials Should Be Accountable for Their Wrongdoing by Leah Litman (“And judges need to be the ones to make them pay.”)
Slate: The Rise of Networked Vigilante Surveillance
Slate: The Rise of Networked Vigilante Surveillance by Elizabeth Joh (“What happens when the neighborhood watch gets automatic license plate readers?”)
NYT: Opinion: The Loophole That Turns Your Apps Into Spies
NYT: Opinion: The Loophole That Turns Your Apps Into Spies by Charlie Warzel (“Just by downloading an app, you’re potentially exposing sensitive data to dozens of technology companies, ad networks, data brokers and aggregators.”)
Lawfare: How Companies Can Help Make Police Facial Recognition Systems More Transparent
Lawfare: How Companies Can Help Make Police Facial Recognition Systems More Transparent by Jake Laperruque (“As facial recognition becomes an increasingly common law enforcement tool, the risks it can pose are becoming increasingly clear. Recently, police in Hong Kong are … Continue reading
CA3: Ptf’s stabbing a police dog, which he threatened to do if they had it attack him, didn’t justify deadly force in shooting him seven times
Police were in a stand off with plaintiff who had a knife, and they had guns and a dog. Frustrated that he wouldn’t comply, officers threatened to unleash the dog on him if he didn’t put down the knife. Plaintiff … Continue reading