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- D.Mont.: 30-day delay in getting SW for seized storage building not unreasonable
- E.D.Cal.: Smell of MJ still PC in a California National Park even though not under state law
- CA10 dissent: Bivens on its last legs
- VA: Consent to look in backpack permitted search of pill bottle
- NY3: Warrantless arrest body cavity search was unreasonable
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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: June 2023
D.Mont.: § 1983 that Montana SWs can’t be executed on tribal lands barred by Younger
Plaintiff in Lewis & Clark County Jail sues under § 1983 that Montana search warrants can’t be executed on tribal lands. This claim is barred by Younger. Adams v. Baker, 2023 U.S. Dist. LEXIS 107569 (D. Mont. June 21, 2023).* … Continue reading
OH1: Exclusionary rule doesn’t apply to statutory violations
The exclusionary rule applies only to constitutional violations, not statutory, and a violation of the probation search statute is not subject to exclusion. State v. Borger, 2023-Ohio-2025, 2023 Ohio App. LEXIS 2044 (1st Dist. June 21, 2023). “While we note … Continue reading
RI: Exigency of hot pursuit in a homicide case made pinging cell phone reasonable
Despite Carpenter saying it is limited to historical CSLI, this court concludes there is no meaningful difference between real-time and historical CSLI under Carpenter. Exigency, however, was real. The police were in hot pursuit seeking to question defendant for a … Continue reading
PA: Justified inquiry about presence of a firearm didn’t unreasonably extend stop
It was reasonable during defendant’s traffic stop for the officer to inquire into whether he had a firearm because the officer figured out defendant was a security guard likely with a weapon. That did not unreasonably extend the stop. Commonwealth … Continue reading
CA5: No preliminary injunction for copying attorney cell phone at border
An immigration attorney who claimed the government copied his cell phone four times after he returned from other countries wasn’t entitled to a preliminary injunction. “Government retention of unlawfully seized property is not sufficient, standing alone, to establish irreparable injury.” … Continue reading
The Intercept: LexisNexis Is Selling Your Personal Data to ICE So It Can Try to Predict Crimes
The Intercept: LexisNexis Is Selling Your Personal Data to ICE So It Can Try to Predict Crimes by Sam Biddle (“ICE uses LexisNexis to track cars, gather information on people, and make arrests for its deportation machine, according to a … Continue reading
CA5: Only RS needed for a routine manual border search of a cell phone
The Fifth Circuit follows other circuits to require only reasonable suspicion for a routine manual border cell phone search. Having found child pornography, the government could keep looking. “He argues that the government violated the Fourth Amendment by conducting the … Continue reading
NE: Cell phone tower dump 15 min. before and after a shooting was reasonable
A cell phone tower dump for 15 minutes before and after a shooting was reasonable. It did not implicate the “privacies of life” that would be with CSLI for an extended period of time, as in Carpenter. State v. Elias, … Continue reading
E.D.Tex.: No right to ex ante notice of email SW to challenge it before execution; remedy is after
An email account holder does not have a right to notice before execution of an email warrant. Moreover, he or she has no standing to challenge a search warrant for email before the warrant is executed. In re Search of … Continue reading
NY Bronx: SW for arrest bystander’s cell phone denied
NYPD got a search warrant for a cell phone that a citizen used to record an arrest. The further search warrant to search the phone is denied. They would have to download the entire phone and then search that, and … Continue reading
D.Idaho: With PC to arrest, use of CSLI to locate ptf did not violate 4A
Probable cause existed for plaintiff’s arrest for eluding officers before his GPS location sharing was utilized to find him. And, state law and rules have no bearing on the federal claim. Larrea v. Koreis, 2023 U.S. Dist. LEXIS 104699 (D. … Continue reading
CA8: No need to prove exigency under 4A for automobile exception
No matter what state cases under state law may say, there’s no need to prove exigency in an automobile exception case under the Fourth Amendment, even when the car is temporarily immobilized. United States v. Johnson, 2023 U.S. App. LEXIS … Continue reading
CA7: The remedy for an overbroad SW is a motion to suppress, not a motion to dismiss
An alleged overbroad email search warrant is pursued by a motion to suppress, not a motion to dismiss. “The remedy for such Fourth Amendment violations in a criminal proceeding is suppression of the evidence, not dismissal of the indictment or … Continue reading
W.D.Mich.: Differing possessory interest claims in state and then federal court is estoppel
At a state show cause hearing, plaintiff disavowed any possessory or property interest in two pit bulls, so he’s estopped from claiming it in a § 1983 case over the dogs. Crandall v. Newaygo Cty., 2023 U.S. Dist. LEXIS 104374 … Continue reading
E.D.Tenn.: Undated controlled buys had to be in five weeks before SW, and that’s not stale
The multiple controlled buys were undated in the search warrant application, but the common sense reading was that they were in the five weeks before the warrant issued. That shows an ongoing drug operation, and it’s not stale. United States … Continue reading
IL grants access to cell phone passcode because biometric scan obviates act of production doctrine
After finding jurisdiction because denying the state access to a cell phone by its forcing the revealing of its passcode was effectively suppressing the search warrant, the Illinois Supreme Court holds that the act of production doctrine of the Fifth … Continue reading
FL1: If trial court refuses to unseal SW affidavit, in camera review must be sought to preserve issue
Defendant sought unsealing of the search warrant affidavit which the state successfully resisted on the ground of informant privilege in other ongoing investigations. The defense never sought in camera review. Without that, the issue was unpreserved for appellate review. Leverette … Continue reading
CA8: No REP against CI recording you in your own house
There is no reasonable expectation of privacy against video recording by an informant when the informant was invited into the home. United States v. May, 2023 U.S. App. LEXIS 14734 (8th Cir. June 14, 2023). “Upon review, the Court finds … Continue reading