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- D.Me.: Looking around house when allegedly “freezing” it was an illegal search
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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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--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 5, 2020
E.D.Tex.: Searching a car more than once isn’t a 4A violation
“The fact that Detective Nance searched portions of the vehicle more than once did not violate the Fourth Amendment.” Mendoza v. United States, 2020 U.S. Dist. LEXIS 68469 (E.D. Tex. Apr. 20, 2020). The exclusionary rule does not apply in … Continue reading
OH4: Folded piece of paper wasn’t plain feel during stop and frisk
A folded piece of paper couldn’t be searched in a stop and frisk and plain feel because the contents weren’t felt. State v. McClure, 2020-Ohio-1574, 2020 Ohio App. LEXIS 1524 (4th Dist. Apr. 16, 2020). “The search warrant was sufficiently … Continue reading
CA9: In California, the smell of marijuana alone coming from a car no longer provides PC
In California, the smell of marijuana alone coming from a car no longer provides probable cause for search of the car. United States v. Martinez, 2020 U.S. App. LEXIS 12536 (9th Cir. Apr. 20, 2020):
N.D.Ill.: Court approves SW for electronic devices believed connected to counterfeiting offenses in SW for home
“The government has presented an application for a warrant to search a townhome for evidence of trafficking in counterfeit United States currency. Among the items identified by the government for search and seizure are electronic devices located in the premises. … Continue reading
OH12: Def was detained without RS and search for arrest on outstanding warrant should have been suppressed
Defendant was detained by three officers and told to wait in her van while one ran her name. The detention lacked reasonable suspicion, and search incident to the arrest for an outstanding warrant was unreasonable and should have been suppressed. … Continue reading
CA5: PC to search and seize doesn’t require that a crime actually have been committed
Plaintiff’s argument that there was no gambling crime for a search to occur is “fantasy” — the question is probable cause to believe a crime occurred, not whether one actually did. Lucky Tunes #3 LLC v. Smith, 2020 U.S. App. … Continue reading
CA7: Anonymous call of suspicious person lacked corroboration and wasn’t RS
This anonymous tip revealed nothing but identifying characteristics, and it didn’t show reasonable suspicion. “Additionally, the tip itself contained no further indicia of the informant’s reliability. It also offered nothing but a barebones description of the suspect: the caller identified … Continue reading
ID: Def’s probationary status was admissible at trial to show context for probation search, not as propensity evidence
The fact defendant was on probation was admissible at trial, not as propensity evidence, but to show context for the probation search and why defendant’s underwear was searched. State v. Jones, 2020 Ida. LEXIS 95 (May 4, 2020). Automatic license … Continue reading
reason.com: How to Track COVID-19 Without Mass Surveillance
reason.com: How to Track COVID-19 Without Mass Surveillance by Zach Weissmueller (“Apple and Google’s Bluetooth-based app would reportedly be voluntary and anonymous. Privacy advocates say we should accept nothing less.”)
E.D.Ky.: Ambiguities in affidavit for SW not a Franks violation
Alleged ambiguities in the affidavit for the search warrant didn’t show a Franks violation where there clearly was probable cause. United States v. Jenkins, 2020 U.S. Dist. LEXIS 69247 (E.D. Ky. Apr. 21, 2020). A 911 call from a cell … Continue reading