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CO: In this recreational MJ use state, a dog sniff is a “search,” and a positive alert isn’t PC a crime is occurring

Posted on July 15, 2017 by Hall

Use of a drug dog on a car is a “search” in marijuana recreational use Colorado, and a dog alert which could be of either legal or illegal substances is not probable cause. People v. McKnight, 2017 COA 93, 2017 Colo. App. LEXIS 879 (July 13, 2017) (divided opinion):
Continue reading →

Posted in Dog sniff, Probable cause, Search, State constitution | Comments Off

CA2: Waiting until trial to move to suppress computer was waiver

Posted on July 15, 2017 by Hall

The FBI thought they had defendant’s wife’s consent to search his computer, but they realized she didn’t know the password, so they applied for a search warrant. Defendant waited until the start of the trial to move to suppress, and that was waiver. He would also lose on the merits of the search. United States v. Nayyar, 2017 U.S. App. LEXIS 12677 (2d Cir. July 12, 2017).

Posted in Motion to suppress | Comments Off

CA7: Def’s wife of 21 years had apparent authority to consent to search of garage even if she didn’t regularly use it

Posted on July 15, 2017 by Hall

Defendant’s wife of 21 years, 10 years at the co-owned property, had apparent authority to consent to its search. The fact she didn’t regularly go into the detached garage didn’t at all mean she didn’t have apparent authority. United States v. Mojica, 2017 U.S. App. LEXIS 12662 (7th Cir. July 14, 2017).

Posted in Apparent authority | Comments Off

TN: Def was brought before magistrate 47¼ hours after his arrest; no Riverside violation and it wouldn’t ripen to a Gerstein violation

Posted on July 15, 2017 by Hall

Defendant was brought before a magistrate 47¼ hours after his arrest and arraigned at 3:15 am, and this was presumptively reasonable. His interrogation after he was released from the hospital after arrest but before arraignment complied with Miranda, and nothing “ripened” into a Gerstein violation. State v. Long, 2017 Tenn. Crim. App. LEXIS 609 (July 11, 2017).

Defense counsel was not ineffective for not pursuing a motion to suppress seizure of a stolen laptop from defendant’s backpack when defendant disclaimed ownership when confronted with it. Abernathy v. State, 2017 Tenn. Crim. App. LEXIS 602 (July 10, 2017).*

Posted in Abandonment, Reasonableness | Comments Off

DE: Nervousness, criminal history, use of a rental vehicle, and high crime area not RS

Posted on July 15, 2017 by Hall

“Delaware Courts have held that nervousness, criminal history, and use of a rental vehicle are not supportive of reasonable suspicion unless used in conjunction with ‘more tangible, objectively articulable indicators of criminality.’” Being in a high crime area also wasn’t enough. Motion to suppress granted. State v. Bordley, 2017 Del. Super. LEXIS 338 (July 11, 2017).*

Hitting the fog line and rumble strips was enough for a stop since the vehicle appeared to be wandering in its lane. The “overwhelming” smell of marijuana was reasonable suspicion. United States v. Portis, 2017 U.S. Dist. LEXIS 107382 (N.D. Ala. July 12, 2017).*

Posted in Reasonable suspicion | Comments Off

Motherboard: Liberty Might Be Better Served by Doing Away with Privacy

Posted on July 15, 2017 by Hall

Motherboard: Liberty Might Be Better Served by Doing Away with Privacy by Zoltan Istvan:

If tech is surveilling us constantly, we need the ability to use it to watch the watchers. [Zoltan Istvan is a futurist, transhumanist, author of The Transhumanist Wager, and a Libertarian candidate for California Governor.]
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Posted in Surveillance technology | Comments Off

N.D.Miss.: Heck bar doesn’t apply to search preceding arrest, but action stayed pending criminal case

Posted on July 14, 2017 by Hall

Plaintiffs’ claim for illegal search and seizure at an internet café resulting in a criminal prosecution is not barred by Heck. The action is stayed, however, pending the outcome of the plaintiffs’ criminal trial. Moore v. Miss. Gaming Comm’n, 2017 U.S. Dist. LEXIS 107464 (N.D. Miss. July 12, 2017)

Posted in § 1983 / Bivens | Comments Off

D.N.J.: Google has to produce emails stored overseas

Posted on July 14, 2017 by Hall

Google responds to subpoenas and search warrants for email accounts from its California headquarters. The fact that the actual data may be stored in a server in another country doesn’t matter–Google still has to produce. In re Search Warrant to Google, 2017 U.S. Dist. LEXIS 108342 (D. N.J. July 10, 2017).

Posted in F.R.Crim.P. 41, Scope of search | Comments Off

NJ rejects a RS requirement for all vehicle dog sniffs

Posted on July 14, 2017 by Hall

New Jersey adopts the Fourth Amendment standard of Rodriguez, and reasonable suspicion is not required for a dog sniff of a car unless the stop is prolonged for the sniff beyond the mission of the stop. State v. Dunbar, 2017 N.J. LEXIS 747 (July 10, 2017).

Defendant’s stop was justified by his walking down the center of the street instead of on the sidewalk. When police approached him, he tried to evade them, and one thing led to another and reasonable suspicion for a frisk was present. United States v. Houston, 2017 U.S. Dist. LEXIS 106702 (E.D. Mich. July 11, 2017).*

Posted in Dog sniff, Reasonable suspicion | Comments Off

TX13: Untested hospital drawn blood sample has to be obtained by SW not subpoena

Posted on July 14, 2017 by Hall

Defendant was in a car wreck and hospitalized. The other person in the wreck died. At the hospital, he was treated and released, but blood was drawn for medical purposes but never analyzed by the hospital. The officer obtained a grand jury subpoena for the blood to get it tested. The trial court suppressed for lack of a search warrant, and the court of appeals affirmed. Defendant retained a reasonable expectation of privacy in the untested blood. This is different than subpoenaing the records of blood testing after it was done. State v. Martinez, 2017 Tex. App. LEXIS 6491 (Tex. App. – Corpus Christi – Edinburg July 13, 2017).

Posted in Drug or alcohol testing, Reasonable expectation of privacy | Comments Off

ABAJ: Orlando cops pull over black state attorney, and the video goes viral

Posted on July 14, 2017 by Hall

ABAJ: Orlando cops pull over black state attorney, and the video goes viral by Debra Cassens Weiss:

Body cam video of Orlando police officers pulling over Florida’s only black state attorney has gone viral after some commentators suggested the stop could have been due to racial profiling.

Posted in Pretext | Comments Off

CNET: US Border Patrol says it won’t search travelers’ cloud data

Posted on July 14, 2017 by Hall

CNET: US Border Patrol says it won’t search travelers’ cloud data by Steven Musil
Clarification came in response to the senator’s questions about border agents pressuring Americans into providing device credentials.

Endgadget: US Customs can search phones but not data stored in the cloud by Mariella Moon
Border officials apparently can’t plunder data stored exclusively on remote servers.

Posted in Border search, Cell phones, Computer and cloud searches | Comments Off

CA8: Protective sweep justified by one’s furtiveness, gun history for def, sounds of others inside

Posted on July 13, 2017 by Hall

Here, there was plenty of articulable facts that added up to reasonable suspicion for a protective sweep because of one person’s apparent furtiveness, a gun history for the arrestee, and the sounds of others inside. United States v. Alatorre, 2017 U.S. App. LEXIS 12409 (8th Cir. July 12, 2017) [in my view, the default is that others inside is almost always enough, but the gun history cinches it]:
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Posted in Protective sweep | Comments Off

N.D.Tex.: SW for apartment didn’t extend to vehicle

Posted on July 13, 2017 by Hall

Search warrant for defendant’s apartment didn’t extend to his vehicle, which the government concedes. The warrantless search of the vehicle along with the apartment exceeded the warrant, and the vehicle search is suppressed. United States v. Salinas, 2017 U.S. Dist. LEXIS 106432 (N.D. Tex. July 11, 2017).

Defendant’s 2255 ineffective assistance of counsel claim is wholly meritless, so defense counsel can’t be ineffective. United States v. Lassend, 2017 U.S. Dist. LEXIS 106879 (D. Mass. July 11, 2017)*

Defendant’s 2255 claim was a different approach to the search and seizure claim already litigated and lost, so it’s denied. Wall v. United States, 2017 U.S. Dist. LEXIS 106738 (D. Del. July 11, 2017).*

Posted in Ineffective assistance, Scope of search | Comments Off

NY Times: When You Should (and Shouldn’t) Share Your Location Using a Smartphone

Posted on July 12, 2017 by Hall

NY Times: When You Should (and Shouldn’t) Share Your Location Using a Smartphone by Brian X. Chen:
Continue reading →

Posted in Surveillance technology | Comments Off

ars technica: FBI didn’t need warrant for stingray in attempted murder case, DOJ says

Posted on July 12, 2017 by Hall

ars technica: FBI didn’t need warrant for stingray in attempted murder case, DOJ says by Cyrus Farivar
Prosecutors: “signals emitted from a phone are… not by their nature private.”

Posted in Cell site simulators | Comments Off

CA5: Ptf doesn’t show that city’s alleged failure to use SWAT teams “threat matrix” properly led to any constitutional violation

Posted on July 11, 2017 by Hall

Plaintiff failed to show a pattern of unconstitutional actions or that the SWAT teams’ use of a “threat matrix” to determine when they would be called out was unconstitutional. Plaintiff doesn’t show that the failure to implement that matrix properly led to any constitutional violation. He’s amended four times and still hasn’t stated a claim. Quinn v. Guerrero, 2017 U.S. App. LEXIS 12290 (5th Cir. July 10, 2017).

Posted in § 1983 / Bivens, Excessive force, Warrant execution | Comments Off

Cal.1: Inventory of duffle bag at booking was reasonable

Posted on July 11, 2017 by Hall

Defendant refused to leave a 24 hour restaurant after being asked several times, and the police were called. Finally, defendant was arrested and taken into custody. His duffle bag was inventoried at the police station and a .38 revolver and ammunition were in it. The inventory of the duffle bag was reasonable. People v. Turner, 2017 Cal. App. LEXIS 611 (1st Dist. July 10, 2017).*

Defendant was convicted of disposing of a firearm for a convicted felon, her son. She claimed the search warrant for her house was based on her coerced statements because she was told to tell the officers the truth or that would be a separate offense. That’s not unlawful coercion. The affidavit otherwise showed probable cause for the search warrant. United States v. McNeal, 2017 U.S. App. LEXIS 12269 (10th Cir. July 10, 2017).*

Posted in Inventory | Comments Off

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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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