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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)
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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: February 2024
NY Times: When Eyes in the Sky Start Looking Right at You
NY Times: When Eyes in the Sky Start Looking Right at You by William J. Broad (“New satellites that orbit the Earth at very low altitudes may result in a world where nothing is really off limits.”). Where does the … Continue reading
E.D.Ky.: Motion for new trial here not ground for illegal search claim
This motion for new trial is not for defendant’s claim that officers hacked his computer to illegally search it. It’s not newly discovered. Moreover, there were questions of the FBI computer analyst about whether the computer had been hacked. United … Continue reading
fourthamendment.com is 21 today
February 24, 2003.
E.D.Wis.: Under Payton, revo warrant justified USM entry into place where def was staying
The US Marshals had an arrest warrant for defendant on an FTA for a revocation hearing. Theydeveloped probable cause through searching Facebook posts that defendant was likely staying at the home of another. Their entry was lawful under Payton and … Continue reading
OH1: Trial court erred in not suppressing when officer couldn’t remember the basis of stop
Defendant satisfied his burden of pleading by stating the stop was without justification. At the hearing on the motion to suppress this OVI case, the officer couldn’t remember why defendant was stopped. The trial court erred in not suppressing. State … Continue reading
Keyboard search warrants and the Fourth Amendment
Commentary, Keyboard search warrants and the Fourth Amendment by John Villasenor, The Brookings Institute (Feb. 22, 2024):
Kerr: “Terms of Service have little or no effect on Fourth Amendment rights.”
Orin Kerr, Terms of Service and Fourth Amendment Rights, 172 U. Pa. L. Rev. 287 (2024):
WV: Police looking at the exterior of defendant’s car was not a search and violated no REP
Police looking at the exterior of defendant’s car was not a search and violated no reasonable expectation of privacy. State v. Estep, 2024 W. Va. LEXIS 92 (Feb. 20, 2024).* The trial court granted a Franks motion, but the state … Continue reading
W.D.Mo.: Unless SW overseizure is in bad faith or with reckless disregard, the entire search doesn’t fail, just the overseizure (but not always)
An overseizure during execution of a search warrant does not lead to suppression of that which was lawfully seized. If anything, just the stuff that was overseized. Here, there was obviously a huge amount of paper seized, and it was … Continue reading
CA10: AOL scanned emails for CP, found some, and forwarded to NCMEC; what NCMEC did did not matter and that’s inevitable discovery
“We conclude that the inevitable discovery exception to exclusion applies, and therefore we need not address whether NCMEC violated the Fourth Amendment by opening Tolbert’s emails and attachments or whether the good faith exception to exclusion would apply. The evidence … Continue reading
TX5: No binding authority says there’s a REP in an inmate’s jail medical records
There is no binding authority that a jail inmate has a reasonable expectation of privacy in his jail medical records, so the court finds the exclusionary rule shouldn’t apply. Quaschnick v. State, 2024 Tex. App. LEXIS 1108 (Tex. App. – … Continue reading
KY: Misstatements of law not subject to Franks challenge
A misstatement of law is not subject to a Franks challenge. Search warrant affidavits are usually drafted in a hurry by nonlawyers, and it’s up to the issuing magistrate to decide whether there is a substantial basis for believing a … Continue reading
MI: Cell phone SW completely fails particularity; no GFE
This cell phone search warrant completely failed the particularity requirement, and the good faith exception did not apply. Cell phone searches are intrusive, and warrants must be particular. People v. Carson, 2024 Mich. App. LEXIS 1235 (Feb. 15, 2024):
CA4: Broad social media SWs in sex trafficking case explained
This is a MS-13 sex trafficking appeal. Facebook warrants were issued for communications that were sent via private message. There was a substantial basis for the issuance of the warrants: “The warrant affidavits in this case were well-sourced. They incorporated … Continue reading
E.D.N.C.: Shed on curtilage shown on Google satellite image attached to affidavit was properly searched although not specified in SW
A shed by the house was properly searched under a warrant for the house. “As a general rule, a supporting affidavit or document may be read together with (and considered a part of) a warrant that otherwise lacks sufficient particularity … Continue reading
CA7: Rodriguez time argument waived by failure to specifically plead it below
“At the outset, we note that Johnson did not challenge the length or validity of the dog sniff in the district court. The record therefore does not contain information crucial to the Rodriguez inquiry, such as whether Deputy Haber acted … Continue reading
NY Queens: Even a stop for an apparent trivial traffic offense requires full constitutional analysis
When the police make what appears to be a trivial traffic stop, the court still has to make a proper analysis lest the court become a rubber stamp for the police. People v. Davis, 2024 NY Slip Op 24041, 2024 … Continue reading
CA5: Facts of this alleged Rodriguez violation get QI
Plaintiff was stopped on I-40 and then he later sued complaining the stop was continued too long. On the facts he presents, it was not clearly established that the continuation of this stop was unreasonable. Weisshaus v. Teichelman, 2024 U.S. … Continue reading
DE: Def can’t show vindictive prosecution to get names of those who allegedly provided false information to police for SW of public records
In a case involving a public official accused of misappropriating funds, there was a search warrant for office records. She claimed she was entitled to the names of those who might have provided false information to investigators for the warrant … Continue reading