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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)
--Outline of Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012)
--Federal Statutes Governing Wiretapping and Electronic Eavesdropping (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: November 2021
CA6: Sex with a court transport officer stated excessive force claim
Sexual intercourse with a court transport officer stated an excessive force claim. Plaintiff raised a factual dispute that the sex wasn’t consensual because of his control over her and a threat he made after he found out she talked about … Continue reading
CO: In a MJ recreational use state, a dog alert on a car doesn’t discriminate between legal and illegal drugs and violates privacy
Possession of small quantities of marijuana is legal in Colorado. Where the drug dog doesn’t discriminate between marijuana and other drugs, a dog alert can be an unreasonable search for a legal substance. Therefore, the district court did not err … Continue reading
D.N.M.: DEA can make a traffic stop under 4A
It is not unreasonable under the Fourth Amendment for a DEA agent to stop a car on state highways for an alleged traffic violation. There was probable cause for an automobile exception search. United States v. Vallejos, 2021 U.S. Dist. … Continue reading
D.Kan.: Word processing error in affidavit didn’t make a Franks issue
The reference to another unknown person in the search warrant affidavit appears to be a word processing mistake and not a material false statement for Franks purposes. Denied. United States v. Moss, 2021 U.S. Dist. LEXIS 221619 (D.Kan. Nov. 17, … Continue reading
N.D.Ohio: One day delay of package in transit was reasonable
Defendant lacked standing to challenge the search of a parcel of drugs. “Even if Defendant could challenge the delay of delivering the Target Parcel, his argument fails. While ‘theoretically’ the ‘detention of mail could at some point become an unreasonable … Continue reading
TX3: REP in car parked on curtilage; plain view suppressed
The trial court’s suppression order is affirmed. Defendant had a reasonable expectation of privacy in his curtilage and his car parked there. The plain view inside his car and then the search was unreasonable. State v. Serna, 2021 Tex. App. … Continue reading
NC: Undated Facebook screenshots as a part of PC showed enduring utility in what was sought, so not stale
Defendant’s argument is that Facebook screenshots showing probable cause in the affidavit for the search warrant don’t specify dates of the electronic data that’s being sought from his place. What was being sought is of enduring utility by its nature, … Continue reading
CA6: Shooting a man in the back for lawfully carrying a gun doesn’t get QI [yet D.Ct. bought it]
The district court erred by granting the police officer summary judgment as to plaintiff’s excessive force claim under the Fourth Amendment. Accepting plaintiff’s account of the incident, the officer violated plaintiff’s clearly established rights when he shot him six times … Continue reading
New York Daily News: Is our government buying our data? We need a federal investigation.
New York Daily News: Is our government buying our data? We need a federal investigation. by Elizabeth Holtzman and Mark Udall (Nov. 18, 2021) (“Tech companies, eager to sell us ads, promise to anonymize any of our shared data, a … Continue reading
ACLU No. Cal.: Spies in the California Skies: New Records Expose State Police Aerial Surveillance of Racial Justice Protesters
ACLU No. Cal.: Spies in the California Skies: New Records Expose State Police Aerial Surveillance of Racial Justice Protesters (Nov 16, 2021) (“If you were one of the thousands of people in California protesting the murder of George Floyd, Breonna … Continue reading
PA: No REP in data moving back and forth over a (nearly) public wifi connection where user agreement told users that
Defendant connected to the wifi at his college, and he was aware of the computing access policy that said that he had no Fourth Amendment reasonable expectation of privacy in the information that moved back and forth over his connection. … Continue reading
CA11: No QI where ptf showed potential false arrest and lengthy detention where crime lab found no drugs
Plaintiff showed sufficient evidence to have a jury decide that her jaywalking arrest was bogus and that led to finding alleged cocaine. Instead, the supposed cocaine was sand leaking from a stress ball that allegedly tested positive for cocaine in … Continue reading
D.Ariz.: Court could order DNA test after charging
The government moved for an order requiring defendant to submit to a buccal swab for DNA to include or exclude him from certain evidence in a homicide case. “Accordingly, the Court finds that, although a buccal swab of the cheek … Continue reading
D.Conn.: Protective sweep led to seizure of cell phone in plain view
Officers conducted a valid protective sweep and found defendant’s cell phone. It was seized in plain view, and then a search warrant was obtained for it. All searches were valid. United States v. Salaman, 2021 U.S. Dist. LEXIS 219785 (D.Conn. … Continue reading
OH11: No standing in father’s cell phones even when communicating with defense experts
Defendant is charged with killing his wife. He didn’t have standing to challenge a search warrant for his father’s cell phones where attorney-client privilege in their contents was asserted because the father was communicating with expert witnesses in his case. … Continue reading
CA4: Choking out and killing a mentally ill man who only vaguely threatened himself was excessive force
“This appeal arises from a tragic incident that led to the death of Joshua Lawhon, an unarmed mentally ill man. Invoking 42 U.S.C. § 1983 and Virginia state law, Lawhon’s mother, as administrator of his estate, brought this action against … Continue reading
TN: Civil investigative demand in deceptive trade practices case was reasonable
The Attorney General’s request for information (a subpoena) in a deceptive trade practices case was reasonable in scope and reasonably related to the AG’s authority under the statute. In re Investigation of Wall & Assocs., 2021 Tenn. App. LEXIS 449 … Continue reading
CA3: Federal court should abstain from entering state court red-flag proceeding
Federal court should abstain under Younger from a state red-flag law proceeding to remove firearms from the plaintiff. Greco v. Bruck, 2021 U.S. App. LEXIS 33660 (3d Cir. Nov. 12, 2021). Defendant’s being in an alley known for druggies and … Continue reading
D.Kan.: Felon in possession’s intentionally shooting himself and calling 911 led to reasonable entry
Defendant intentionally shot himself in the leg and called 911 for help. Police arrived and seized the gun, and he was a felon. The entry and remaining in the house was reasonable. United States v. Culpepper, 2021 U.S. Dist. LEXIS … Continue reading
E.D.Mo.: One who could freely come and go from the house of another had standing
Defendant had a relationship with the property of another but he didn’t spend the night. He could come and go. That was sufficient for standing. The co-defendant’s case, however, already found probable cause. United States v. Futrell, 2021 U.S. Dist. … Continue reading