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- D.N.M.: DEA’s failure to make a detailed inventory in violation of policy doesn’t require exclusion of evidence
- WaPo: These cities bar facial recognition tech. Police still found ways to access it.
- C.D.Cal.: SW materials in case with weighty public interest ordered unsealed
- DC: Accepting a law license is consent to trust account subpoenas
- AR: RS def rented a hotel room was sufficient for search waiver; PC not required
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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: March 2020
D.N.M.: Eight day delay in executing SW for ongoing drug trafficking operation wasn’t stale
Defendant’s prior admission in the proceedings that an omission from the affidavit for a state search warrant was just negligent served to now deny a Franks challenge. Waiting eight days to serve the warrant did not make it stale either … Continue reading
D.Nev.: No motions through six continuances and past motions deadline all untimely
After six continuances in 18 months or so, the defendants’ motion to suppress and other motions filed on the eve of trial are denied as untimely. United States v. Phillips, 2020 U.S. Dist. LEXIS 42782 (D. Nev. Mar. 11, 2020). … Continue reading
WY: 911 hang-up call from def’s girlfriend and def answered call back volunteering he’d never hit her, with other information, justified warrantless entry
Defendant’s girlfriend made a 911 hang-up call. When 911 called back, defendant answered the phone and volunteered he’d never hit her when she didn’t speak on the first call. Defendant was known to the police to have firearms and possible … Continue reading
Cal.4d1: Leaving the engine running to one’s car outside house for 30 minutes isn’t exigent circumstances
A neighbor called the police because defendant left his vehicle outside with the engine running for 30 minutes. This did not indicate an emergency justifying a warrantless entry into his casita. There were drugs in plain view. People v. Smith, … Continue reading
Reason: Maryland Man Killed in No-Knock SWAT Raid Was Shot While Asleep, Family Says
Reason: Maryland Man Killed in No-Knock SWAT Raid Was Shot While Asleep, Family Says by C.J. Ciaramella (“Montgomery County police say Duncan Lemp ‘confronted’ a SWAT team executing a search warrant on his family’s house. His family says he was … Continue reading
Vice: COVID-19 Could Provide Cover for Domestic Surveillance Expansion
Vice: COVID-19 Could Provide Cover for Domestic Surveillance Expansion by Karl Bode (“The use of location data to help track and manage the pandemic should come with meaningful safeguards and expiration dates, privacy experts say.”)
Vox: Reset Podcast: When your phone links you to a crime
Vox: Reset Podcast: When your phone links you to a crime produced by Recode and Stitcher (“Every story is a tech story. We live in a world where algorithms drive our interests, scientists are re-engineering our food supply, and a … Continue reading
CO: Opening door to confirm VIN of possible stolen car was reasonable when the dashboard VIN was covered
The officers had reasonable suspicion that the car was stolen. They exhausted all the possibilities without confirming one way or the other, and the VIN on the dashboard wasn’t visible. Opening the door to see the VIN on the door … Continue reading
TX: CSLI for 23 days in 2012 without any possible showing of PC or exigency was unreasonable
CSLI for 23 days in 2012 without any possible showing of probable cause or exigency was unreasonable under the Texas Constitution as well as the Fourth Amendment. Remanded for harmless error analysis. Holder v. State, 2020 Tex. Crim. App. LEXIS … Continue reading
W.D.Mo.: Govt couldn’t rely on Strieff where there was no RS to begin with
The government’s motion to reconsider is denied. It can’t justify the stop under Strieff because “[a]t the time the officer activated his lights and ordered Mullins to approach, he not only lacked reasonable suspicion to conduct a Terry stop, he … Continue reading
TX4: School search was based on RS from info from known source
There was reasonable suspicion for a school search because the school authorities had information from a known source that provided it. In re J.A.M., 2020 Tex. App. LEXIS 2077 (Tex. App. – San Antonio Mar. 11, 2020). Defendant’s chokehold on … Continue reading
ColumbiaMissourian: Meet Officer Drone, the Columbia Police Department’s new tool
ColumbiaMissourian: Meet Officer Drone, the Columbia Police Department’s new tool by Connor Giffin:
CA7: ShotSpotter alert followed by 911 calls was RS when coupled with time of night and lack of other cars
Defendant’s car was driving out of the coverage area of a ShotSpotter alert. This was essentially an “anonymous tip” from ShotSpotter that was followed by 911 calls that independently confirmed it. The totality of the circumstances established that the officer … Continue reading
MN: Return of digital copies of attorney’s files seized by SW was only issue and now moot; legality of SW comes later
The attorney here was the target of a search warrant for all her files where the attorney was the suspect, not a client. That distinguishes O’Connor. The parties, the client interveners, and amici have briefed all kinds of constitutional arguments … Continue reading
E.D.Ky.: Def’s jacket was subject to search incident even though he was handcuffed and couldn’t reach it
Defendant’s jacket was subject to search incident, and his handcuffing didn’t eliminate the officer’s ability to do so. United States v. Certain, 2020 U.S. Dist. LEXIS 42273 (E.D. Ky. Mar. 11, 2020), adopting, 2020 U.S. Dist. LEXIS 44077 (E.D. Ky. … Continue reading
N.D.Ill.: Two police officers whose conversation was accidentally transmitted over radio had no REP in them
Plaintiffs were police officers who had what they thought was a private conversation, but, due to a radio malfunction, it was transmitted on a channel they didn’t even use and was recorded. The conversation led to their termination. The defendants … Continue reading
D.Ariz.: Nexus here was so “thin” that the court won’t even apply GFE
The government didn’t even show a connection between the defendant and the alleged crime to get access to his subscriber information. “While courts may find the good-faith exception to apply when an application is ‘thin,’ a showing of some connection … Continue reading
CA6: “We must take care not to confuse a bare bones affidavit with one that merely lacks probable cause.”
There was a substantial basis for finding probable cause, and this didn’t even approach “bare bones.” “We must take care not to confuse a bare bones affidavit with one that merely lacks probable cause.” The motion to suppress was properly … Continue reading