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- CA5: Deficient privilege log after records search was waiver
- E.D.Ky.: When court can’t tell the dog alerted, motion to suppress granted
- OH1: A malnourished child isn’t exigency for an infant
- E.D.Pa.: Mandamus doesn’t lie to unseal SW papers
- 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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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: January 2021
CA6: PC for ptf’s arrest and prosecution defeats malicious prosecution claim, despite his acquittal
“This is one of those cases. A witness told Detective Keith Roberts that her former boyfriend, Eugene Baker, and one of Baker’s friends whom she knew as ‘Desean’ had robbed and murdered a competing drug dealer. After this witness identified … Continue reading
OH5: Def’s inordinate delay in finding car insurance card enabled reasonable dog sniff
The stop was delayed by defendant being unable to produce his proof of insurance, so the officer did not extend the stop to run a dog around the car during the wait. State v. Newman, 2021-Ohio-119, 2021 Ohio App. LEXIS … Continue reading
CA3: A predicate to a 41(g) motion to return property is a prior request
“To the extent Baer complains of the Government’s failure to return his devices, his argument fails because he never sought their return. Defendants who never seek the return of the property cannot argue that delay violated the Fourth Amendment. United … Continue reading
MO: Computer check showing LPN expired was RS despite apparent valid sticker
There was reasonable suspicion for defendant’s stop based on a computer check of his LPN which showed it had expired. The sticker, however, showed it was current. The officer could make the stop to check whether it was counterfeit, something … Continue reading
E.D.Tenn.: Facebook is not a government actor
Facebook is not a government actor, even if NCMEC is under the Tenth Ciruit’s Ackerman. United States v. Sykes, 2021 U.S. Dist. LEXIS 9580 (E.D. Tenn. Jan. 19, 2021). 46 days from a child pornography download by the government to … Continue reading
NPR: Maryland Man Arrested After GPS Unit Allegedly Shows He Was At Capitol Riot
NPR: Maryland Man Arrested After GPS Unit Allegedly Shows He Was At Capitol Riot by Austin Austermuhle (“A Silver Spring man who prosecutors say is a professed white supremacist has been charged for illegally entering and remaining in a restricted … Continue reading
D.Mass.: Calling def’s cell phone from a seized cell phone’s recent call log wasn’t a search
Dialing defendant’s cell phone from the call log of a seized cell phone was not a search. If defendant wanted his number to remain private, he should block the number or turn off the phone. United States v. Katana, 2021 … Continue reading
OH5: If suppression court goes off on an unaddressed issue, the parties get to respond
If the trial court in a suppression hearing goes off in another direction not raised by the parties, the parties get to respond. Here, the state was on notice. State v. Arthur, 2021-Ohio-104, 2021 Ohio App. LEXIS 100 (5th Dist. … Continue reading
N.D.Ill.: Arrest warrant doesn’t permit a search on entry
Defendant’s arrest warrant permitted entry to arrest him but not to search. A protective sweep was still permitted, if justified. Here no. But the search warrant for the cell phone was not tainted by the initial illegality, and the exclusionary … Continue reading
Lawfare: Online Service Providers and the Fight Against Child Exploitation: The Fourth Amendment Agency Dilemma
Lawfare: Online Service Providers and the Fight Against Child Exploitation: The Fourth Amendment Agency Dilemma by Jeff Kosseff:
CA11: Standing required for 41(g) motion for return of property
The district court did not abuse its discretion in declining equitable jurisdiction under Rule 41(g) for lack of a threshold showing of standing and justiciability. United States v. Stoune, 2021 U.S. App. LEXIS 1178 (11th Cir. Jan. 15, 2021). The … Continue reading
Nothing online is anonymous; especially Zoom
There’s no Fourth Amendment issue raised here, but this is a particularly ugly child pornography case involving live child rape broadcast by Zoom. Police gathered sign-in and logs from Zoom used to share the child pornography. It was captured first … Continue reading
OH7: Defense counsel’s strategic choice to not challenge search was reasonable; he exploited it in cross of the officers
Defense counsel’s strategic choice to not challenge a search and embrace the result of the search for cross-examination was reasonable. And it was justified because it resulted in acquittal on a big count. State v. Baker, 2020-Ohio-7023, 2020 Ohio App. … Continue reading
NJLJ: Commentary: Use of Facial Recognition Following Capitol Siege Highlights Issues Seen in NJ Case
NJLJ: Commentary: Use of Facial Recognition Following Capitol Siege Highlights Issues Seen in NJ Case by David Gialanella (“This case, it now appears, will be one of many. The mob invasion of the U.S. Capitol has prompted calls for the … Continue reading
E.D.Wash.: Where buy money was recorded, SW for it has to itemize it
Where buy money has recorded serial numbers, that’s required in a search warrant for the money to satisfy particularity. Also, the good faith exception did not apply. United States v. Contreras-Aguilar, 2021 U.S. Dist. LEXIS 8613 (E.D. Wash. Jan. 15, … Continue reading
CA10: Weaknesses in the PC for Franks should be disclosed
Plaintiff failed to show a Franks violation in the affidavit for warrant. “To be sure, if the affiant for a warrant possesses information that would cast substantial doubt on the existence of probable cause, that information should not be intentionally … Continue reading
D.Mass.: 15 month delay in getting SW for cell phone seized with PC was unreasonable, but GFE applies
The 15-month delay between seizure of a cell phone with probable cause is was unreasonable, applying United States v. Smith, 967 F.3d 198, 202 (2d Cir. 2020). However, the court finds that the good faith exception applies, and the court … Continue reading
CA10: 4A imposes no duty for officer to seek out a video to confirm PC officer already has
Before an officer files a criminal complaint, there is no constitutional duty to review potential video of the occurrence. The video here wasn’t quickly accessible to the officer. Here, there was probable cause and this other constitutional claim is not … Continue reading
S.D.W.Va.: Stop of out-of-state vehicle for expired tags objectively reasonable despite Executive Order in other state extending time because of Covid
Defendant’s stop for expired tags in another state was objectively reasonable because the officer couldn’t have known that there was a Covid executive order extending the time to renew vehicle licenses in the other state. Maybe in the officer’s own … Continue reading