Archives
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Recent Posts
- 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,
citations, and links -
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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)
--Federal Laws Relating to Cybersecurity: Discussion of Proposed Revisions (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: January 2024
GA: ER GSW patient had no REP in his clothing removed by staff and then given to police
Defendant came to an ER for treatment for a gunshot wound. The medical staff bagged his clothing after getting it off him, and then gave it to the police who requested it. He had no reasonable expectation of privacy in … Continue reading
D.Nev.: No standing where alleged Turo car rental couldn’t be shown by driver
The court finds defendant lacked standing in a car he claims to have rented through Turo from the owner. The innocent driver of car stolen by someone else could have standing, but he doesn’t even get there. The rental couldn’t … Continue reading
CA8: Failure to mention CI’s convictions or payments for information wasn’t material
The warrant affiant’s failure to mention the CI was paid or had convictions wasn’t material to change the outcome of the probable cause determination. With CIs, things like that can be assumed. United States v. Riaski, 2024 U.S. App. LEXIS … Continue reading
Law Review: On Warrants & Waiting: Electronic Warrants & The Fourth Amendment
Tracy Hresko Pearl, On Warrants & Waiting: Electronic Warrants & The Fourth Amendment, 99 Ind. L. J., Issue 1, Article 1 (Winter 2023):
Fast Company: Schools are using surveillance tech to catch students vaping—and doling out harsh punishments
Fast Company: Schools are using surveillance tech to catch students vaping—and doling out harsh punishments (“Sensors marketed as fighting COVID-19 are actually being used to monitor students and then threaten them with suspension—or even criminal charges.”). Is there a reasonable … Continue reading
KS: Search of def’s purse when she was passed out likely from ODing was reasonable
The emergency aid exception justified the search of defendant’s purse. She was passed out on a convenience store bathroom floor with drug paraphernalia around her. It was reasonable to look in her purse to see what drug it might have … Continue reading
WV: “Mobile cellular phones” particular enough
“The first warrant authorized the seizure of ‘mobile cellular phones,’ clearly imparting sufficient particularity to allow the officer to know that petitioner’s phone was to be seized. Where the warrant clearly authorized seizure of the phone, there can be no … Continue reading
CA8: Affiant officer’s belief that criminals brag about crimes on social media allows cell phone search in a gun case
“We conclude the affidavit adequately established probable cause that Ivey’s cell phone would contain evidence of a firearms offense. Officers found the phone in Ivey’s possession while he was located in a vehicle with a gun under his seat. The … Continue reading
N.D.Cal.: Failure to pursue alleged traffic violation made stop unreasonable
Defendant was stopped ostensibly for a traffic violation, and he was handcuffed and the officers literally did nothing to investigate that–they didn’t even ask for his license and registration. Despite the fact Whren says pretext doesn’t matter, that lack of … Continue reading
Cal.4: No REP from images caught by streetlight camera
Defendant had no reasonable expectation of privacy from images taken on a street light camera where he parked his vehicle. Carpenter just doesn’t apply. Moreover, a store surveillance camera had him there, too. People v. Cartwright, 2024 Cal. App. LEXIS … Continue reading
CA3: Nexus doesn’t require positive evidence; inference will do
Nexus doesn’t require positive evidence defendant has drugs at home; an inference suffices. United States v. Green, 2024 U.S. App. LEXIS 1737 (3d Cir. Jan. 25, 2024). “Kirik’s particularity challenges are unavailing. With respect to Kirik’s challenge to the articulation … Continue reading
D.R.I.: SW required for a short term CSLI Tower Dump
Finding short term CSLI obtained by a cell phone tower dump also protected by the Fourth Amendment, the court holds, disagreeing with other courts, that a warrant was required, but the good faith exception applies. An long, interesting opinion. “The … Continue reading
MSNBC: Opinion: A hospitalized baby, a terrified mother: A botched police raid in Ohio is the tip of the iceberg
MSNBC: Opinion: A hospitalized baby, a terrified mother: A botched police raid in Ohio is the tip of the iceberg by Radley Balko (“Until judges start taking seriously their responsibility to protect the Fourth Amendment, expect to see more innocent … Continue reading
IA: RS: “cries of ‘please help me, don’t hurt me’ could lead an officer to infer that an assault is taking place”
Caller’s “cries of ‘please help me, don’t hurt me’ could lead an officer to infer that an assault is taking place.” That was reasonable suspicion. State v. Sinclair, 2024 Iowa App. LEXIS 74 (Ct. App. Jan. 24, 2024). “Cordova argues … Continue reading
CA5 (en banc): Arrest of “citizen journalist” under a statute never declared unconstitutional was with QI
“Villarreal fails to satisfy her burden on either [qualified immunity] prong. This is not a case about a ‘citizen journalist just asking questions.’ That clever but misleading phrase cannot relieve this court of our obligation to evaluate Villarreal’s conduct against … Continue reading
CA2: Reason to believe ptf was inside justified entry with arrest warrant under Payton
Officers had an arrest warrant for plaintiff, and that gave them the ability to enter his home to look for him under Payton when they had a reasonable belief he was inside. Engelmayer v. Engelmayer, 2024 U.S. App. LEXIS 1617 … Continue reading
CNN: Amazon’s Ring to shutter video-sharing program popular with police
CNN: Amazon’s Ring to shutter video-sharing program popular with police by Brian Fung [“shutter” isn’t quite correct, is it?:] (“ Amazon’s Ring will no longer let police and other government agencies request doorbell camera footage from within the company’s Neighbors … Continue reading
CA5: This circuit’s “moment of threat” doctrine for excessive force should be re-examined as contrary to Garner
The “moment of threat” doctrine of excessive force cases in this circuit seems contrary to Tennessee v. Garner, and it should be revisited by the whole court. Barnes v. Felix, 2024 U.S. App. LEXIS 1530 (5th Cir. Jan. 23, 2024):
WI: Drug dog “instinct exception” not applicable here, even if it is ever adopted
The court declines to adopt, at least for now, a drug dog’s “instinct exception” for the dog entering defendant’s car. Other courts have adopted that exception, but factually it doesn’t even apply here because the court finds the dog was … Continue reading