Archives
-
Recent Posts
- OH2: Police responding to report of shot dog who heard an animal could had exigency to enter the curtilage
- CA4: Court instructing that the legality of searches were questions for the court wasn’t error
- W.D.N.C.: No REP in a police interview room
- TX2: No SW needed to get IMEI number of an abandoned cell phone to trace the owner
- W.D.Pa.: Affidavit for SW doesn’t have to say CI was reliable when the facts and circumstances alleged showed it
-
-
ABA Journal Web 100, Best Law Blogs (2017); ABA Journal Blawg 100 (2015-16) (discontinued 2018)
-
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) -
~~~~~~~~~~~~~~~~~~~~~~~~~~
Fourth Amendment cases,
citations, and links -
Latest Slip Opinions:
U.S. Supreme Court (Home)
Federal Appellate Courts Opinions
First Circuit
Second Circuit
Third Circuit
Fourth Circuit
Fifth Circuit
Sixth Circuit
Seventh Circuit
Eighth Circuit
Ninth Circuit
Tenth Circuit
Eleventh Circuit
D.C. Circuit
Federal Circuit
Foreign Intell.Surv.Ct.
FDsys, many district courts, other federal courts
Military Courts: C.A.A.F., Army, AF, N-M, CG, SF
State courts (and some USDC opinions)
Google Scholar
Advanced Google Scholar
Google search tips
LexisWeb
LII State Appellate Courts
LexisONE free caselaw
Findlaw Free Opinions
To search Search and Seizure on Lexis.com $ -
Research Links:
Supreme Court:
SCOTUSBlog
S. Ct. Docket
Solicitor General's site
SCOTUSreport
Briefs online (but no amicus briefs)
Oyez Project (NWU)
"On the Docket"–Medill
S.Ct. Monitor: Law.com
S.Ct. Com't'ry: Law.com
-
General (many free):
LexisWeb
Google Scholar | Google
LexisOne Legal Website Directory
Crimelynx
Lexis.com $
Lexis.com (criminal law/ 4th Amd) $
Findlaw.com
Findlaw.com (4th Amd)
Westlaw.com $
F.R.Crim.P. 41
www.fd.org
Federal Law Enforcement Training Center Resources
FBI Domestic Investigations and Operations Guide (2008) (pdf)
DEA Agents Manual (2002) (download)
DOJ Computer Search Manual (2009) (pdf)
Stringrays (ACLU No. Cal.) (pdf)
-
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)
ACLU on privacy
Privacy Foundation
Electronic Frontier Foundation
NACDL’s Domestic Drone Information Center
Electronic Privacy Information Center
Criminal Appeal (post-conviction) (9th Cir.)
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)
Website design by Wally Waller, Little Rock 
Monthly Archives: November 2020
E.D.N.Y.: Valid strategic reasons for not using SW affidavit at trial
Defendant claimed perjury at trial because search warrant affidavits had information contrary to the trial testimony. There were good strategic reasons for not putting the affidavit in evidence. “Presumably, in deciding this claim, it is only appropriate to consider evidence … Continue reading
NY: Reversal for 4A violation isn’t “favorable termination” for malicious prosecution claim
Reversal because of a Fourth Amendment violation isn’t a “favorable termination” for malicious prosecution claims. Butler v. City of New York, 2020 NY Slip Op 33363(U), 2020 N.Y. Misc. LEXIS 10130 (N.Y. Co. Oct. 14, 2020) (Martinez v. City of … Continue reading
NY2: Affidavit for SW for cell phone completely failed to show PC
The affidavit for the search warrant for defendant’s cell phone completely failed to show probable cause to search it and seize photographs. People v. Boothe, 2020 NY Slip Op 07084. 2020 N.Y. App. Div. LEXIS 7311 (2d Dept. Nov. 25, … Continue reading
OH1: No govt’l immunity for property taken in search not listed
When property is taken under a search warrant and listed on the return, the government has immunity for taking it. It does not, however, have immunity for property taken that is unlisted. Brown v. City of Cincinnati, 2020-Ohio-5418, 2020 Ohio … Continue reading
OH1: Specific BOLO of being involved in shooting justified stop
A specific BOLO for a vehicle alleged to be involved in a shooting led to defendant’s stop with reasonable suspicion. Probable cause then developed. State v. Houston, 2020-Ohio-5421, 2020 Ohio App. LEXIS 4301 (1st Dist. Nov. 25, 2020). “In his … Continue reading
CA5: Hitting a man on ground in fetal position 26 times stated claim
Allegations of police beating a man 26 times lying in the fetal position was enough to overcome qualified immunity. “Though Joseph was not suspected of committing any crime, was in the fetal position, and was not actively resisting, Officers Martin … Continue reading
D.C.Cir.: Def’s stop was consensual and his admission he had “some weed” was PC for search incident
“Lea’s initial interaction with Officers Woods and Wooley bears all the hallmarks of a consensual encounter: the officers did not touch Lea or brandish their weapons, which were concealed; Lea’s movement was not restricted; the officers wore plain clothes; the … Continue reading
OR: Direction to “open the door” resulted in an unreasonable search
The officer was investigating defendant for DUII and followed him home. His knock on the door and direction to “open the door” was a command to submit to a search. The officer’s observation of defendant’s condition is suppressed. State v. … Continue reading
CA6: SW with wrong address and color of building was still particular enough in location
The search warrant was wrong on the address and colors of the place to be searched. Following the description in the warrant, however, led to only one building: The place searched. The officer involved was there to ensure it was … Continue reading
CA9: Changing allegedly offending officer in Franks challenge on appeal was waiver
Defendant’s Franks challenge to one officer’s alleged misstatements were changed on appeal to involve another officer. This was waiver. United States v. Arnold, 2020 U.S. App. LEXIS 37199 (9th Cir. Nov. 25, 2020). In the college admissions scam case, “Here, … Continue reading
CA6: State court’s failure to remand for more factfinding was still a “full and fair opportunity to litigate” his 4A claim
Habeas petitioner’s CoA request is denied. His claim that he was denied a “full and fair opportunity to litigate” his Fourth Amendment claim because the state appellate court didn’t remand for fact finding is rejected. He had the opportunity to … Continue reading
TX: Totality of affidavit justified on totality SW for surveillance videos even though affidavit didn’t explicitly say so
While the affidavit for search warrant didn’t explicitly say that it wanted the DVR for surveillance cameras to prove a crime at the business, the totality of the affidavit leaves the impression from common knowledge that seizure and search was … Continue reading
E.D.Tenn.: Def doesn’t even attempt a Franks offer of proof and it fails
“Defendant fails to provide the requisite offer of proof to make a substantial preliminary showing that Agent Celeste intentionally or recklessly included false information in the Affidavit. Likewise, defendant fails to explain the absence of such an offer of proof, … Continue reading
N.D.Cal.: “Least intrusive means” for a search isn’t the 4A question; reasonableness is.
“Least intrusive means” for a search isn’t the Fourth Amendment question—reasonableness is. Anyone can imagine a lesser intrusive measure and that would lead to choas. United States v. Crenshaw, 2020 U.S. Dist. LEXIS 220617 (N.D. Cal. Nov. 23, 2020):
TX9: Mandamus doesn’t lie to avoid a search warrant before it’s executed
The target of a search warrant sought to avoid the search by a writ of mandamus, which is denied for lack of a right to a clear duty on the respondent’s part. In re Matula, 2020 Tex. App. LEXIS 9239 … Continue reading
CA11: No REP in one’s email address held by IP company under third-party doctrine
“This appeal requires us to decide whether the government needed a warrant to obtain a criminal suspect’s email address and internet protocol addresses from a third party’s business records. It also requires us to decide whether probable cause supported a … Continue reading
CA9: Mid-trial change in testimony from SW affidavit may entitle def to Franks hearing, but here issue wasn’t timely raised
Without deciding whether to follow the Fourth Circuit (United States v. White, 850 F.3d 667, 673 (4th Cir. 2017)) holding that trial testimony differing from a search warrant affidavit entitles the defendant to a mid-trial Franks hearing, here the issue … Continue reading
DE: Investigating witness tampering justified SDT for jail calls
The AG subpoenaed jail calls, which defendant concedes could be recorded and that he had no privacy in. His argument here is whether there was a “substantial governmental interest in obtaining the prison phone records.” The state counters that they … Continue reading
W.D.Wis.: Beware trying to impose Riley on a mere civil discovery request
“Equating a suspected drug trafficker’s assertion of a Fourth Amendment expectation of privacy in his cell phone with plaintiffs’ discovery requests in this case wastes everybody’s time.” Driftless Area Land Conservatory v. Huebsch, 2020 U.S. Dist. LEXIS 218934 (W.D. Wis. … Continue reading