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Recent Posts
- 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,
citations, and links -
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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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Section 1983 Blog -
"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: October 2020
N.D.Ala.: Def failed to prove he was an overnight guest with standing
Defendant lacked standing where he purported to be an overnight guest, but the host said no. United States v. Spencer, 2020 U.S. Dist. LEXIS 191102 (N.D. Ala. Sept. 4, 2020), adopted, 2020 U.S. Dist. LEXIS 190308 (N.D. Ala. Oct. 14, … Continue reading
D.S.D.: Issuing magistrate shown not to be neutral and detached in issuing SW wholly lacking in PC
A tribal judge was not a neutral and detached magistrate, and the good faith exception did not apply. The application for the search warrant was technically deficient in both form (lacking a prosecutor’s signature) and substance (completely lacking probable cause), … Continue reading
N.D.Ga.: Reissuance of a better SW to Google after a motion to suppress wasn’t unreasonable
As to one challenged search of Google, when the government says it won’t use challenged evidence at trial, the motion to suppress becomes moot. A motion to suppress another search warrant to Google led to reissuance of a search warrant … Continue reading
AR: Video of arrest wasn’t claimed below to be a const’l claim, so it’s waived
Defendant sought to suppress the video of his arrest where he held a knife to his throat but he cited nothing for the Fourth, Fifth, or Sixth Amendment, but he did cite Rule 403. The state argued it was evidence … Continue reading
S.D.N.Y.: ShotSpotter alert from a rooftop led to encounter then RS
A ShotSpotter report was specific as to a shot coming from a rooftop in the Bronx. That house was the subject of many police calls. This led to defendants being encountered by officers who discussed with them what was going … Continue reading
S.D.N.Y. follows majority and holds that a cell phone search starts with “seizure of the media”
The government had possession of defendant’s cell phone and technically started the search within the time limits of Rule 41(e)(2)(B) by “seizure of the media.” The extraction report followed up months later. United States v. Estime, 2020 U.S. Dist. LEXIS … Continue reading
M.D.Pa.: Photographs of interior of house taken before SW issued are suppressed
Photographs of the interior of defendant’s house taken before the search warrant issued are suppressed. They did not have any effect on the issuance of the warrant, however. United States v. Carey, 2020 U.S. Dist. LEXIS 190963 (M.D. Pa. Oct. … Continue reading
TX1: Driving offenses can be an indication of RS by showing avoidance of being stopped
Driving offenses can be indicators of drug trafficking and avoidance. “Therefore, based on the information he received from Captain Garrett related to appellant’s involvement in possible narcotics trafficking, combined with his observations of appellant driving on the shoulder, we conclude … Continue reading
WY: Stop was factually justified even if pretextual
“Despite the stop of the Tacoma being pretextual due to information provided by Agent Ford, Trooper Hobbs based the initial traffic stop upon a personally witnessed violation of the law. Thus, [Mr. Simmons’] rights under both the Wyoming Constitution and … Continue reading
GA: Even if GPS tracker was unconstitutionally placed, it didn’t affect later SW for vehicle
Defendant first claimed the vehicle was his when the officer asked, and he consented to a search of it. After a few loose rounds of ammunition were found, he disavowed ownership. It turned out there was also a tracking device … Continue reading
CA8: Negative patdown didn’t remove threat when ptf reached for waistband and was shot
Plaintiff was patted down (it appears more of a full search incident) and then fled and reached for his waistband and was shot. A gun was overlooked in the patdown. “We therefore conclude that Officer Ashcraft is entitled to summary … Continue reading
LawPracticeCLE: Evidence Seized with the Use of Canine Searches: A Guide for Attorneys
LawPracticeCLE: Evidence Seized with the Use of Canine Searches: A Guide for Attorneys (Oct. 27, 2020)
N.D.Cal.: Officer doesn’t need RS before contacting def with a suspicionless search waiver
Defendant had a suspicionless parole search waiver, and the officer doesn’t even need cause for the encounter. United States v. Jackson, 2020 U.S. Dist. LEXIS 189471 (N.D. Cal. Oct. 13, 2020). The affidavit for the search warrant of defendant’s tax … Continue reading
MA: CP warrant wasn’t stale where information was 7 months old and he was a collector
Defendant’s motion to suppress was properly denied. The affidavit referred to child pornography access on the internet seven months before the search warrant was sought, and it was not stale because it was likely child pornography would be found in … Continue reading
MA: Def’s arrest in car with others didn’t remove safety factor of search for firearm
Defendant’s arrest didn’t remove the safety factor because there were others in the vehicle who could access a potential weapon. Therefore, the search for the weapon was reasonable. Commonwealth v. Silvelo, 2020 Mass. LEXIS 647 (Oct. 14, 2020). Defendant filed … Continue reading
CA9: Bulge in clothing from a firearm justifies a stop-and-frisk in California
A bulge that appears to be a firearm justifies a stop-and-frisk in jurisdictions where concealing a weapon is presumptively a crime, here, California. United States v. Bontemps, 2020 U.S. App. LEXIS 32227 (9th Cir. Oct. 13, 2020):
MT: Private actor recording conversation on own didn’t violate state constitution
The Montana Constitution’s more “robust protection from government intrusions” still only protects against state action. A private actor recording a conversation without impetus from the state was not unreasonable. State v. Wolfe, 2020 MT 260, 2020 Mont. LEXIS 2436 (Oct. … Continue reading
VA: Knock-and-talk is still a valid exception for entry onto the curtilage
While entry into the curtilage is presumptively unreasonable without a warrant, Collins v. Virginia, 138 S. Ct. 1663, 1670 (2018), there is still implied license for police to enter for a knock-and-talk. Saal v. Commonwealth, 2020 Va. App. LEXIS 241 … Continue reading
CA2: CIs don’t need “a track record of reliability” when shown otherwise reliable
The CI was described in the affidavit for the warrant as “reliable,” but didn’t elaborate. “Circuit precedent does not require informants to have a track record of reliability. … Here, where the informant testified under oath before the issuing judge … Continue reading
D.C.Cir.: Alleged seizure of open fields not a 4A claim, but it is a 5A claim
The North American Butterfly Association sued the federal government over a part of the Mexican border wall on their butterfly preserve being Fourth and Fifth Amendment claims. Their Fourth Amendment claim is dismissed because it involves alleged seizure of open … Continue reading