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MN: Birchfield not retroactive

Posted on January 3, 2018 by Hall

Application of Birchfield in Minnesota was determined to be procedural rather than substantive for purposes of retroactive effect. Johnson v. State, 2018 Minn. App. LEXIS 10 (Jan. 2, 2018).

Defendant’s detention was with reasonable suspicion. “Considering the totality of the evidence adduced at the suppression hearing in the light most favorable to the Government-including the blood-covered scene at the salon, witness observations, Mendoza-Torrecialls’s and Rea’s proximity to the crime scene, the absence of anyone else in the vicinity, and Rea’s bloodied appearance-we conclude that the facts known to police at the moment they encountered Mendoza-Torrecialls sufficed to give rise to a fair probability that he had engaged in criminal activity.” United States v. Mendoza-Torrecialls, 2018 U.S. App. LEXIS 36 (5th Cir. Jan. 2, 2018).*

Posted in Drug or alcohol testing, Reasonable suspicion | Comments Off

CA5: Forgoing license check not unreasonable under Rodriguez where investigation is proceeding apace

Posted on January 3, 2018 by Hall

“Burcham’s argument based on Rodriguez v. United States, 135 S.Ct. 1609 (2015), is unavailing. Rodriguez is distinguishable; the district court did not err in finding that Jenkins’s decision to extend the stop was justified by additional reasonable suspicion developed from Burcham’s responses to traffic-related questions. See United States v. Brigham, 382 F.3d 500, 508-09 (5th Cir. 2004) (en banc). [¶] Jenkins also did not violate Rodriguez by forgoing a check on Burcham’s driver’s license and vehicle registration. See Brigham, 382 F.3d at 511. Nothing in Rodriguez requires an officer to perform such checks; the Supreme Court merely recognized that the Fourth Amendment tolerated the checks as incident to an officer’s traffic mission. See Rodriguez, 135 S.Ct. at 1614-15.” Defendant validly consented to a search. United States v. Burcham, 2018 U.S. App. LEXIS 21 (5th Cir. Jan. 2, 2018).

Posted in Reasonable expectation of privacy | Comments Off

OH8: Drug dog on scene while ticket being written caused no additional detention

Posted on January 3, 2018 by Hall

Defendant’s stop was with reasonable suspicion based on corroborated informant hearsay. “Because the police were still in the process of writing the traffic ticket when the canine arrived and conducted the sniff, and thus the stop was not unlawfully extended.” State v. White, 2018-Ohio-18, 2018 Ohio App. LEXIS 3 (4th Dist. Jan. 2, 2018).

There is obviously no reasonable expectation of privacy in a jail surveillance video of a hallway where defendant assaulted a guard on video. Roemisch v. State, 2017 Tex. App. LEXIS 12112 (Tex. App. – Eastland Dec 29, 2017) (why would anybody think there’s privacy in a jail hallway?).

Posted in Dog sniff, Reasonable expectation of privacy | Comments Off

MyNewsLA.com: Apartment building owners sue LA over rent stabilization, argue ordinance hurts tenants

Posted on January 3, 2018 by Hall

MyNewsLA.com: Apartment building owners sue LA over rent stabilization, argue ordinance hurts tenants by Toni McAllister:
Continue reading →

Posted in Administrative search, Reasonable expectation of privacy | Comments Off

D.D.C.: Suppressed evidence [a confession] leads to grant of pretrial release

Posted on January 3, 2018 by Hall

The question of the effect of suppressed evidence on the question of bail is considered at length in United States v. Taylor, 2018 U.S. Dist. LEXIS 205 (D.D.C. Jan. 2, 2018), albeit here in a suppressed confession. The court concludes that the weight of the government’s case is iffy-er and, thus, the risk of flight is reduced. Therefore, defendant gets release.
Continue reading →

Posted in Uncategorized | Comments Off

CA8: Denying any knowledge of a car or its contents is abandonment of a cell phone found inside it; cell phones subject to abandonment

Posted on January 3, 2018 by Hall

Defendant was believed connected to a shooting involving a Buick. He was taken back to the Buick after arrest, and he denied all knowledge of the Buick. Inside was found a cell phone that the police seized and obtained a warrant for, and pictures were found of defendant with a firearm similar to the one used in the shooting. He abandoned the cell phone by disclaiming any interest in the Buick. The validity of the search warrant is thus moot. The court rejects the argument that cell phones can’t be abandoned. United States v. Crumble, 2018 U.S. App. LEXIS 14 (8th Cir. Jan. 2, 2018):
Continue reading →

Posted in Abandonment, Cell phones | Comments Off

California, Florida, Illinois, and Texas versions of Search and Seizure

Posted on January 2, 2018 by Hall

Want to write a version of Search and Seizure for your state? Have two years to spend on advancing your own knowledge of the subject? Lexis plans state specific versions of Search and Seizure for these states. Email the author and we’ll forward your name to Lexis to contact you.

Posted in Uncategorized | Comments Off

AP: “Man sits in jail when drywall powder is mistaken for cocaine” because a drug dog said it was cocaine

Posted on January 2, 2018 by Hall

AP: Man sits in jail when drywall powder is mistaken for cocaine:

OVIEDO, Fla. (AP) — A Florida man spent 90 days in jail after police officers who stopped him for driving without headlights said white powder found in his car was cocaine.

Continue reading →

Posted in Dog sniff | Comments Off

KS declines to decide whether odor of MJ on the person is PC because here there was more than just that

Posted on January 2, 2018 by Hall

Defendant didn’t dim headlights and officers stopped the car suspecting inattentive driving. The smell of marijuana coming from the car was obvious. “We decline the State’s offer to embark on a new legal proposition that would allow Kansas law enforcement officers to search a person simply because there was an odor of marijuana about that person.” There was inattentive driver in addition to just smell from the car and the person. State v. Hadley, 2017 Kan. App. LEXIS 91 (Dec. 22, 2017).

Defendant doesn’t show in his 2255 how filing a motion to suppress would have aided his defense because there was no conceivable ground on which it would have succeeded. United States v. Zamudio-Beltran, 2016 U.S. Dist. LEXIS 192265 (D. N.M. May 12, 2016).*

Posted in Ineffective assistance, Plain view, feel, smell | Comments Off

OH3: Narc told patrol officer def was drug suspect, and patrol officer ran DL and found it was suspended; stop valid despite pretext claim

Posted on January 2, 2018 by Hall

A patrol officer was told that defendant was a drug suspect. He was told because he had stopped defendant before and was familiar with him. He ran defendant’s name through the state computer and it showed that defendant had no valid DL. When he happened upon defendant going about his shift, he stopped the car. The stop had a factual basis, and the pretext did not make the stop unreasonable. “In this case, Bethel did not make a random traffic stop. Rather, Bethel had probable cause to believe that McDonald was committing a traffic violation because, at the time of the traffic stop, Bethel had actual knowledge that McDonald was operating a motor vehicle without a valid driver’s license.” State v. McDonald, 2017-Ohio-9250, 2017 Ohio App. LEXIS 5727 (3d Dist. Dec. 26, 2017).

Posted in Pretext, Probable cause | Comments Off

OH5: Working meth lab is exigency

Posted on January 2, 2018 by Hall

Defendant was initially stopped with information from a CI amounting to reasonable suspicion that he was purchasing precursors and ingredients to manufacture methamphetamine. When the police got to his house, it was apparent there was a working meth lab, and that’s exigency. State v. Freeders, 2017-Ohio-9278, 2017 Ohio App. LEXIS 5745 (5th Dist. Dec. 26, 2017).

“A reliable confidential informant personally made two controlled buys, and this information was verified by the police who supervised the buys ….” That’s probable cause. People v. Clemente, 2017 NY Slip Op 09235, 2017 N.Y. App. Div. LEXIS 9311 (1st Dept. Dec. 28, 2017).*

Posted in Emergency / exigency, Informant hearsay | Comments Off

MI: Electric company’s use of smart meters is not state action for 4A purposes

Posted on January 2, 2018 by Hall

The electric company’s decision to install smart meters is not a Fourth Amendment issue because the company is a private actor. In re Consumers Energy Co., 2017 Mich. App. LEXIS 2161 (Oct. 10, 2017, published Dec. 28, 2017).

The state trial court may have misidentified the search and seizure issue, but the court of appeals did not, and defendant thus had a full and fair opportunity to litigate the Fourth Amendment claim in state court. Haakenstad v. Symdon, 2017 U.S. Dist. LEXIS 212933 (W.D. Wis. Dec. 29, 2017).*

Posted in Private search, Surveillance technology, Third Party Doctrine | Comments Off

There are six pending SCOTUS Fourth Amendment cases

Posted on January 1, 2018 by Hall

Six pending SCOTUS Fourth Amendment cases

Posted in SCOTUS | Comments Off

NYTimes: The Failed War on Drugs

Posted on January 1, 2018 by Hall

NYTimes: The Failed War on Drugs by George P. Shultz and Pedro Aspe:
Continue reading →

Posted in Uncategorized | Comments Off

Book on sale through midnight PT Jan. 2

Posted on January 1, 2018 by Hall

Enter NEW2018 at checkout or Call 800.223.1940

Posted in Uncategorized | Comments Off

Today is [or maybe] the 414th anniversay of Semayne’s Case and judicial recognition of knock-and-announce and the castle doctrine

Posted on January 1, 2018 by Hall

Today (as best as can be determined) is the 414th anniversary of Semayne’s Case recognizing both knock-and-announce and the castle doctrine at common law. Back then, the dates of decisions weren’t as important and they appeared in reporters well after the fact. The date has been given as 1603 and 1604. Consensus seems to be January 1, 1604.
Continue reading →

Posted in Common law, Knock and announce, SCOTUS | Comments Off

OH6: Warrantless blood draw from believed to be dying motorcyclist valid

Posted on January 1, 2018 by Hall

A warrantless blood draw from defendant was reasonable where, at the scene of his motorcycle accident on I-75 hitting the rear of a car when it was travelling approximately 102 in a 65 and killing his passenger throwing her 450′ beyond where the motorcycle stopped, the officers came upon defendant and thought he was going to bleed out and die before help arrived. He was unconscious and unresponsive, his face was torn off, and he was only making gurgling noises. He was no better at the ER. State v. Speelman, 2017-Ohio-9306, 2017 Ohio App. LEXIS 5777 (6th Dist. Dec. 29, 2017).

Defendant has no standing to claim a tracking device was improperly placed in a package shipped to his address where he did not claim any interest in the package. United States v. Ruffin, 2017 U.S. Dist. LEXIS 213253 (N.D. Ohio Dec. 29, 2017).*

Posted in Drug or alcohol testing, Standing | Comments Off

IN: DRE exam requires warning of right to counsel under state const.

Posted on January 1, 2018 by Hall

The Indiana Constitution recognizes a right to warning that counsel may be consulted of a person in custody before a consent search is sought in Pirtle v. State, 323 N.E.2d 634 (Ind. 1975). That has been held not to apply to FSTs or PBTs because they are so short in duration. A DRE, however, takes 30 minutes, so Pirtle applies. Dycus v. State, 2017 Ind. App. LEXIS 887 (Dec. 29, 2017).

Posted in Drug or alcohol testing, State constitution | Comments Off

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also, firm website Top 90 Criminal Law Blogs 2026
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by John Wesley Hall
Criminal Defense Lawyer and
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Little Rock, Arkansas
Contact: forhall @ aol.com
Search and Seizure (6th ed. 2025)
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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, Let it Bleed (album, 1969)
"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]
“Children grow up thinking the adult world is ordered, rational, fit for purpose. It’s crap. Becoming a man is realising that it’s all rotten. Realising how to celebrate that rottenness, that’s freedom.”
– John le Carré, The Night Manager (1993), line by Richard Roper
"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)
The book was dedicated in the first (1982) and sixth (2025) editions to Justin William Hall (1975-2025). He was three when this project started in 1978.

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