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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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--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)
Website design by Wally Waller, Little Rock 
Monthly Archives: February 2021
Law Review: How the Fourth Amendment Frustrates the Regulation of Police Violence
Seth W. Stoughton, How the Fourth Amendment Frustrates the Regulation of Police Violence, 70 Emory L. J. 521 (2021):
Foreign Policy Research Institute: The Intelligence Community and Open-Source Information in the Digital Age
Foreign Policy Research Institute: The Intelligence Community and Open-Source Information in the Digital Age by George W. Croner:
Cal.2: Conduct didn’t suggest drug activity, but it justified a stop. “Common sense takes context into account.”
Defendant’s conduct that aroused police suspicion didn’t suggest drug activity, but “Common sense takes context into account.” It was suspicious enough on the totality to permit a Terry stop. People v. Flores, 2021 Cal. App. LEXIS 130 (2d Dist. Feb. … Continue reading
CA4: Suit by convict over arrest without PC doesn’t mention conviction and isn’t barred by Heck
Plaintiff’s complaint that his arrest was without probable cause doesn’t necessarily implicate his guilt or innocence, and it isn’t barred by Heck. He doesn’t even mention the conviction. Dizzley v. Garrett, 2021 U.S. App. LEXIS 4314 (4th Cir. Feb. 16, … Continue reading
CA8: QI denied for entering the wrong house at 3 am looking for taxi fare skipper
Police looking for a taxicab fare skipper at 3 am found a door to a garage ajar and entered plaintiffs’ home with guns drawn. They encountered plaintiffs outside their bedroom but never found the fare skipper. Plaintiffs sued. The court … Continue reading
The Intercept: LAPD Sought Ring Home Security Video Related to Black Lives Matter Protests
The Intercept: LAPD Sought Ring Home Security Video Related to Black Lives Matter Protests by Sam Biddle (“Emails obtained from the Los Angeles Police Department show that the department sought protest-related footage from Amazon’s Ring home camera systems in the … Continue reading
GA: CSLI lawfully obtained in 2013 was subject to GFE
The acquisition of defendant’s CSLI in 2013 followed law at the time and was reasonable, and the good faith exception applied. Carpenter came four years after the trial. Lofton v. State, 2021 Ga. LEXIS 28 (Feb. 15, 2021). The officers … Continue reading
D.D.C.: Failure to timely make return of papers under Rule 41 not a 4A violation
Failure to make the return of the warrant to the clerk along with the inventory in violation of Rule 41 requires more than just negligence in failing to do it on time. Where’s the prejudice? The court will not speculate … Continue reading
Reason: Sotomayor Invokes Scalia on Fourth Amendment Protections
Reason: Sotomayor Invokes Scalia on Fourth Amendment Protections by Damon Root (“Does the Fourth Amendment right to be free from unreasonable seizures include the right to be free from an unreasonable attempted seizure?”)
SD: Inverse condemnation doesn’t lie for damage caused by execution of SW
Surveying cases from other jurisdictions, the South Dakota Supreme Court decides that inverse condemnation claims do not lie under the state’s eminent domain provision ( “[p]rivate property shall not be taken for public use, or damaged, without just compensation[.]”) for damage to … Continue reading
M.D.Fla.: State court’s findings on PC [not appealed] not binding on federal court
A state court’s findings of lack of probable cause to proceed with some charges against the defendant isn’t binding on federal courts. “Based on the evidence presented at the hearing, including the 911 calls, bodycam footage, and the credible and … Continue reading
D.P.R.: Getting out of car and running away from it on seeing the police is abandonment
Defendant didn’t file a declaration under penalty of perjury contesting the facts alleged in his criminal complaint. He also fails to show even a subjective reasonable expectation of privacy in the place searched to give him standing. He abandoned his … Continue reading
UT: Suspect has a 5A right to not give up unlock code to cell phone
Defendant had a Fifth Amendment right to not give up the unlock code to his cell phone. Utah declines to apply the foregone conclusion exception to the Fifth Amendment to attempt to require a suspect to give up his cell … Continue reading
NY: Denial of ownership of a key fob found under def at his arrest is abandonment of the car
Defendant could be detained during the search of his house under a warrant. When he got up off the floor, there was a key fob underneath him, and he denied it was his. The officers used the panic button to … Continue reading
FL5: Valid stop can be based on mistaken facts and still be reasonable
The question for validity of a stop is probable cause, not the defendant’s ultimate guilt. Fourth Amendment reasonableness allows for reasonable mistakes of fact. The trial court erred in granting the motion to suppress where the stop was still reasonable. … Continue reading
CA3: Petition to revoke has to be based on a 4A showing of PC on oath or affirmation, and this was
The petition to revoke was based on probable cause and oath or affirmation and complied with the Fourth Amendment. United States v. Petlock, 2021 U.S. App. LEXIS 3865 (3d Cir. Feb. 11, 2021). Police responded to a suicide in progress … Continue reading
W.D.Okla. & MA: Nexus can be shown by inference
Nexus also needs only to be shown by a “fair probability” and inference suffices. United States v. Hollis, 2021 U.S. Dist. LEXIS 26387 (W.D. Okla. Feb. 11, 2021):
CA3: Warrant for roving wiretap didn’t have to call device a “cell site simulator” when it fully described it
The government obtained a roving wiretap for defendant’s cell phone with a cell site simulator. In the warrant application, they described in detail what a cell site simulator was, but it never said the words “cell site simulator.” It doesn’t … Continue reading
CA10: Failure to specify CI’s criminal history didn’t make affidavit “bare bones” or justify a Franks hearing
Defendant was suspected of thefts of equipment from oil fields. An Oklahoma state investigator applied for a GPS warrant for defendant’s vehicle. The warrant was issued on probable cause with nexus, and the good faith exception applies. “Smith argues on … Continue reading
FL1: Even with issuing magistrate having second thoughts and suppessing, SW was executed in good faith
A search warrant was issued for drugs and firearms, and the CI was a “disgruntled” ex-girlfriend. The issuing judge heard the motion to suppress and decided that her disgruntledness required corroboration, and, on second thought, she wouldn’t have issued the … Continue reading