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Recent Posts
- AR: RS def rented a hotel room was sufficient for search waiver; PC not required
- LA5: No standing to challenge search of shooting victim’s cell phone in def’s possession
- N.D.Okla.: Cell phones possessed by tribal police not subject to return under Rule 41(g)
- E.D.Ark.: Landlord and tenant refused rental property inspection and SW was validly issued and protected privacy interests
- D.D.C.: Judge shopping after denial of SW inappropriate; could have appealed to DJ
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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)
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--Federal Statutes Governing Wiretapping and Electronic Eavesdropping (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: July 2020
CA9 applies QI standard to “egregious violations” of 4A for ICE entries
ICE entry onto appellant’s curtilage to arrest him was not an egregious violation of the Fourth Amendment, the court applying qualified immunity language to show it wasn’t. “At the time of the entry, no binding authority held that an officer’s … Continue reading
E.D.Mo.: Using cell site simulator with SW was reasonable and particular
A warrant supported by ample probable cause was used for a cell site simulator to find defendant’s cell phones. No conversations were captured. The USMJ compared it to a tracking warrant, which wasn’t unreasonable. The warrant was also constitutionally particular. … Continue reading
Slate.com: Black Judge Has to Explain to White Colleague Why Racial Profiling Is Bad
Slate.com: Black Judge Has to Explain to White Colleague Why Racial Profiling Is Bad by Mark Joseph Stern:
CA6: Not telling officers during arrest and transport of pre-existing injury gives them QI
“Detroit police arrested Baxter Jones for disorderly conduct. They transported Jones, who uses a wheelchair, in a modified cargo van. Jones says riding in the van aggravated his spinal injuries and hurt his shoulders and hands. The district court denied … Continue reading
Cal.1: Cell phone ping to find def after a stabbing was with exigent circumstances
Police having defendant’s cell phone pinged to find him after a stabbing he was alleged to have done in a populated area was with exigent circumstances and reasonable. People v. Bowen, 2020 Cal. App. LEXIS 659 (1st Dist. July 15, … Continue reading
E.D.N.Y.: Illustrative list in SW satisfies particularity
Use of an illustrative list helps show particularity of the search warrant. United States v. Messalas, 2020 U.S. Dist. LEXIS 123735 (E.D. N.Y. July 10, 2020). The video of the stop supports justification for the stop. State v. Rivera, 2020 … Continue reading
CA4: That Bivens shouldn’t recognize this claim wasn’t raised below and it’s waived
“Here, the officers argue that their case – notwithstanding its similarities to Bivens, which likewise involved a Fourth Amendment claim against federal law enforcement officers – presents a ‘new Bivens context,’ and that allowing it to proceed runs afoul of … Continue reading
LA: Failure to argue Schmerber in trial court was waiver
Defendant’s failure to argue Schmerber in the trial court was [essentially] waiver, and defendant didn’t show the trial court erred. State v. Michael, 2020 La. LEXIS 1347 (July 9, 2020):
CA2: Lack of any justification for a stop distinguishes Strieff and finding arrest warrant wasn’t attenuated
The police lacked reasonable suspicion to stop defendant because about all they had was he was the same race as their suspect. Finding an outstanding arrest warrant didn’t attenuate the unreasonable stop. The lack of any justification for the stop … Continue reading
MI: Unlawfully extended probation can’t be used to justify a probation search
Where the trial court lacked the power to extend probation, a probation search during the unlawfully extended term was unreasonable. People v. Vanderpool, 2020 Mich. LEXIS 1207 (July 13, 2020). A probation search doesn’t violate the state constitution. State v. … Continue reading
N.D.Ohio: Mere desire to cross-examine about the drug dog’s bona fides isn’t a Franks issue
Merely wanting to cross-examine about the reliability of the drug dog isn’t a Franks challenge. There still has to be a “substantial preliminary showing” of a falsity, and desire to cross-examine isn’t it. United States v. Robinson, 2020 U.S. Dist. … Continue reading
N.D.Ohio: Some discretion in inventories doesn’t make them unreasonable
The driver’s suspended DL was reason under policy to tow the car, and that led to a valid inventory. The inventory issue turned on whether a key was “readily available” to unlock the glove compartment, and a key found in … Continue reading
D.Minn.: Motion to suppress denied for lack of specificity
Defendant’s motion to suppress is denied for lack of specificity. United States v. Zuniga-Garcia, 2020 U.S. Dist. LEXIS 122220 (D. Minn. June 24, 2020). There was probable cause for the search warrant, despite the claimed Franks violation which was not … Continue reading
CA7: Factual mistake in state court opinion doesn’t justify habeas relief
A factual mistake in a state court’s decision on defendant’s Fourth Amendment claim for the inventory of his property still doesn’t merit habeas relief. Marling v. Littlejohn, 2020 U.S. App. LEXIS 21616 (7th Cir. July 13, 2020). Plaintiff’s claim for … Continue reading
L.R. Article: The Questionable Objectivity of Fourth Amendment Law by Orin S. Kerr
The Questionable Objectivity of Fourth Amendment Law by Orin S. Kerr, forthcoming in 41 Tex. L. Rev. Abstract:
CA7: County jail’s body cavity searches of ptf were fact based on RS and reasonable
Plaintiff was subjected to two body cavity searches of her rectum and vagina for drugs she was reasonably believed to have smuggled into the jail through booking. It was invasive, but it was reasonable on balance with the jail’s security … Continue reading