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- MD: While protective sweep information made it into SW affidavit, there was PC without it
- N.D.Ga.: A Customs forensic search of a cell phone away from the border was still a border search
- CA6: State officer’s arrest for violation of federal MJ law likely wouldn’t violate 4A
- D.N.M.: Shared driveway outside of fence and gate was not curtilage
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by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
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Search and Seizure (6th ed. 2025)
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© 2003-26,
online since Feb. 24, 2003 Approx. 600,000 visits (non-robot) since 2012 Approx. 50,000 posts since 2003 (29,000 on WordPress as of 12/31/25) -
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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)
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“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.
Website design by Wally Waller, Colorado Springs. 
Treatise on sale to 11/1
MD: While protective sweep information made it into SW affidavit, there was PC without it
This search with a warrant was preceded by a protective sweep. Observations made during the sweep made it into the warrant affidavit. Assuming without deciding the sweep was unreasonable, there was sufficient other probable cause for the warrant. Founds v. State, 2026 Md. LEXIS 562 (Sep. 30, 2026).
The warrant was particular. “That place was the apartment behind the ‘rear red door with white trim,’ which, ‘when looking at [the] rear of [the] property,’ was ‘the door to the right.’ …. That specific description was the premises to be searched in the warrant. So, it was not a general warrant for the entire building, but a warrant specifically authorizing the search of the apartment behind that door.” It did not just include searching the door. United States v. Gladden, 2026 U.S. Dist. LEXIS 237270 (M.D. Pa. Oct. 16, 2026).*
Defendant doesn’t get to file a motion to suppress out of time. While the indictment changed slightly, not enough to affect that. Also, adding new counsel doesn’t justify it either. United States v. Crosby, 2026 U.S. Dist. LEXIS 238139 (W.D. Mo. Sep. 24, 2026).*
N.D.Ga.: A Customs forensic search of a cell phone away from the border was still a border search
Defendant’s cell phone was seized at ATL Customs for a border search, and it went elsewhere for a forensic search. That search was still a border search. United States v. Vereen, 2026 U.S. Dist. LEXIS 238218 (N.D. Ga. Sep. 1, 2026).*
The affidavit showed nexus and probable cause to his car and house. As to the house: “The affidavit also demonstrated a sufficient nexus between Tooley’s drug trafficking and the Brockton house. Agents’ surveillance of the property and the location data from Tooley’s cell phone supported a reasonable — indeed, strong — inference that Tooley was living at the house. And during their September 10 FaceTime calls before the controlled purchase, Tooley showed CW-1 how he was cooking the cocaine himself and weighed the drugs on a scale.” United States v. Tooley, 2026 U.S. Dist. LEXIS 238230 (D. Mass. Oct. 19, 2026).*
“Here, according to Plaintiff’s allegations, Officer Gill responded to an attempted assault on Plaintiff by pointing her gun at Plaintiff, the victim. … Gill continued to brandish her firearm at Plaintiff even as Crimm continued to stab Plaintiff. Id. Weighing these facts under the Graham factors, this Court finds that Plaintiff states a claim under § 1983 for violation of his Fourth Amendment rights.” Young v. Gill, 2026 U.S. Dist. LEXIS 238287 (E.D. Mo. Oct. 19, 2026).*
CA6: State officer’s arrest for violation of federal MJ law likely wouldn’t violate 4A
Dicta: While Ohio law is silent on whether a state officer could make an arrest for violation of federal marijuana law, it likely wouldn’t violate the Fourth Amendment. United States v. Whitlow 134 F.4th 914 (6th Cir. 2025); United States v. Garrett, 2026 U.S. App. LEXIS 31568 (6th Cir. Oct. 16, 2026).
There was probable cause for a warrant for video and audio from two doorbell cameras catching the crime. Alternatively, the good faith exception applies. The government raises standing, which isn’t decided. United States v. Rodrigues, 2026 U.S. Dist. LEXIS 236878 (D. Mass. Oct. 16, 2026).*
The bodycam video supports the officer’s conclusion the windows were overtinted. United States v. Harris, 2026 U.S. Dist. LEXIS 237230 (E.D. Tenn. Sep. 30, 2026).*
D.N.M.: Shared driveway outside of fence and gate was not curtilage
Defendant’s car was searched under the automobile exception in his driveway. There’s a fence and gate between the car on the driveway and the front door. All things considered under Dunn, this driveway is not the curtilage. “The driveway is not enclosed nor is it protected from observation. … The driveway is part of an area that is easily visible and accessible to others—especially the occupants of nearby townhouses. … Four other vehicles were parked in the same continuous driveway …” “Finally, the Court concludes the driveway is not used for an ‘intimate activity associated with the sanctity of a man’s home and privacies of life.’ Dunn, 480 U.S. at 300 (citation modified).” United States v. Trujillo, 2026 U.S. Dist. LEXIS 237410 (D.N.M. Oct. 16, 2026).
The officer’s omission of another IP address from the affidavit for search warrant isn’t material to the probable cause finding. United States v. Perrote, 2026 U.S. Dist. LEXIS 236805 (W.D. Wis. Oct. 15, 2026).*
The search incident of defendant’s bag was reasonable, and consent doesn’t even have to be decided. United States v. Guardipee, 2026 U.S. Dist. LEXIS 236100 (D. Mont. Oct. 15, 2026).*
VI: Smell of MJ no longer PC in VI since legalization
Since marijuana is legal in the Virgin Islands, the smell of marijuana from a car is no longer probable cause for a search. People v. Thomas, 2026 V.I. LEXIS 44 (Super. Ct. Oct. 6, 2026).
Petitioner does not get a CoA on his ineffective assistance of counsel claim for not raising a Fourth Amendment claim that could not prevail for lack of standing. Sindone v. Garcia, 2026 U.S. App. LEXIS 31449 (6th Cir. Oct. 15, 2026).*
Officers had reasonable suspicion and then probable cause for defendant’s stop. His eluding after that supported it. United States v. Requejo-Garcia, 2026 U.S. Dist. LEXIS 235645 (W.D. Okla. Oct. 15, 2026).*
Reason: 3 Charlotte Cops Resign After Group Chat Reveals Competition To Arrest the Most Black People
Reason: 3 Charlotte Cops Resign After Group Chat Reveals Competition To Arrest the Most Black People by Josh Pauzé (“Three Charlotte cops have resigned and three more are facing termination after a Flock probe uncovered a text chain littered with racist messages, religious and sexual bias and a reported competition over who could arrest the most black people. The group chat came to light after Charlotte-Mecklenburg Police Department (CMPD) officer Seth Elliott was caught using Flock’s database to out an undercover cop to his drug dealer friend, which sparked an investigation by the North Carolina State Bureau of Investigation (NCSBI).”)
E.D.Mich.: Second SW for cell phone data retained by govt was valid
This is a second motion to suppress a cell phone search, the first having been denied. A copy of the phone remains with the government, the phone having been returned. The first warrant to review the contents was for human trafficking, the second for sex trafficking. United States v. Mahone, 2026 U.S. Dist. LEXIS 235173 (E.D. Mich. Oct. 15, 2026).*
Defendant’s frisk for a weapon produced marijuana. The frisk didn’t involve squeezing pocket and was valid. United States v. Grant, 2026 U.S. App. LEXIS 31407 (11th Cir. Oct. 15, 2026).*
Warrantless cell phone search at Customs was reasonable. United States v. Jelleyman, 2026 U.S. Dist. LEXIS 235144 (M.D. Fla. Oct. 15, 2026).*
This cell phone warrant was based on probable cause shown to a state court judge. United States v. Bom, 2026 U.S. Dist. LEXIS 235252 (D. Alaska Oct. 14, 2026).*
S.D.W.Va.: “Shocking” nature of immigration raid on a Mexican restaurant at lunchtime didn’t warrant suppression
Defendants run a family-owned Mexican restaurant in West Virginia. HSI did a masked and armed immigration middle of day raid for employees under an inspection warrant. While the raid may have been “shocking” to everybody, it’s not enough to be unreasonable. And there’s a standing issue. United States v. Aguirre-Arello, 2026 U.S. Dist. LEXIS 235841 (S.D. W. Va. Oct. 15, 2026):
Continue readingID: Drug dog’s touching nose on the car door was not a trespass
The drug dog’s touching his nose on the car door was not a trespass. State v. Pendleton, 2026 Ida. LEXIS 147 (Oct. 14, 2026).
The search warrant for defendant’s medical records for his DUI with injury was particular. State v. Bradley, 2026 Ga. App. LEXIS 478 (Oct. 14, 2026).*
The officer had reasonable suspicion defendant was involved in drugs and legitimately stopped him for speeding. Within 3½ minutes, they conversed about defendant’s alleged drug involvement and the officer asked for and got consent. The search was valid. State v. Idhen, 2026 MT 246 (Oct. 13, 2026).*
“Defendant Deputies evicted Plaintiff pursuant to a writ of execution and Plaintiff does not otherwise identify any unreasonable uses of force. Therefore, the Court has no factual content to draw any reasonable inference that any deputy may be liable of conduct rising to a Fourth Amendment violation.” Gottfried v. Keystone Prop. Mgmt., LLC, 2026 U.S. Dist. LEXIS 234433 (D. Or. Oct. 14, 2026).*
WI: During a traffic stop, officers can run the criminal history of passengers
During a traffic stop, officers can run the criminal history of passengers. State v. Pantle, 2026 Wisc. App. LEXIS 1138 (Oct. 14, 2026).
Defendant’s conditional release search one week before the end of his term was based on reasonable suspicion and valid. United States v. Louis, 2026 U.S. App. LEXIS 31137 (11th Cir. Oct. 13, 2026).*
Fleeing in Minnesota is a felony. Using a PIT maneuver was not clearly established to be excessive force. Pulling a gun on plaintiff until handcuffed wasn’t excessive. Bolibruch v. Frovarp, 2026 U.S. Dist. LEXIS 233141 (D. Minn. Oct. 13, 2026).*
The officer complied with the department’s standardized inventory procedure, so the search is valid. United States v. Mays, 2026 U.S. Dist. LEXIS 231053 (E.D. Mo. Oct. 8, 2026).*
IL: No state privacy interest in personal identifying information
“Rather, in light of the foregoing authorities, we conclude defendant has failed to establish he has a legitimate privacy interest in the personal information—e.g., his name, date of birth, height, weight, hair color, and eye color—compiled on his identification card. None of the information at issue raises the types of privacy concerns or touches upon the types of privacy interests that have been found to warrant such protection.” People v. St. John, 2026 IL App (4th) 251208, 2026 Ill. App. LEXIS 405 (Oct. 7, 2026).
Officers surveilling an area known for hand-to-hand drug deals saw a group of men probably doing that, and they moved in and defendant fled to a nearby abandoned apartment. They had reasonable suspicion. He also had no standing in a bag left outside the abandoned apartment. United States v. Mayhew, 2026 U.S. Dist. LEXIS 232678 (N.D. Ga. Aug. 27, 2026).*
It was reasonable for officer safety to remove a holstered gun from defendant they were arresting who was slumped over the handlebars of his motorcycle before waking him up. People v. Vanpelt, 2026 CO 66 (Oct. 12, 2026).*
CA8: Judge gets no qualified or judicial immunity for locking up children who didn’t want to go with a parent
A judge gets no qualified or judicial immunity for ordering children locked up for refusing to leave court with a parent they didn’t want to go with. In a prior appeal, “the children were beyond his contempt power and ‘judges do not do double duty as jailers.’” Rockett, 71 F.4th at 672.” Rockett v. Eighmy, 2026 U.S. App. LEXIS 31078 (8th Cir. Oct. 13, 2026). Reason: The 8th Circuit Rejects Qualified Immunity for a Judge Who Jailed 2 Kids for ‘Refusing To Follow Directions’.
The alleged false statement here isn’t material. There was plenty of probable cause. United States v. Aponte, 2026 U.S. Dist. LEXIS 231282 (E.D. Pa. Oct. 8, 2026).*
Even if this stop was pretextual based on an anonymous call, there was a factual basis for it, so it was valid. Twelve minutes into the stop defendant fled and took the officers on a high speed chase. It was not unreasonably prolonged under Rodriguez. United States v. Perez, 2026 U.S. Dist. LEXIS 232442 (D. Vt. Oct. 8, 2026).*
Volokh: How Should Flock Cameras Be Regulated Under the Fourth Amendment?
Volokh Conspiracy: How Should Flock Cameras Be Regulated Under the Fourth Amendment by Orin S. Kerr
D.P.R.: Mere possession of a car doesn’t show standing
Just having possession of a car doesn’t show standing. How did it come to be? United States v. Luna-Irizarry, 2026 U.S. Dist. LEXIS 232412 (D.P.R. Oct. 8, 2026):
Continue readingD.Kan.: Gun dislodged fleeing police dog wasn’t excludable, even if it was excessive force (which it wasn’t)
Siccing a police dog on a suspected armed and dangerous burglar that dislodged a Glock with a switch was not unreasonable. Even if it was excessive force, which it wasn’t, exclusion wouldn’t be the proper remedy. United States v. Wilhoite, 2026 U.S. Dist. LEXIS 232389 (D. Kan. Oct. 9, 2026):
Continue readingS.D.Ill.: Witness’s memory failure on the stand at trial didn’t support a Franks challenge
Defense counsel wasn’t ineffective for not raising a Franks challenge mid-trial when a participant in the search warrant process had a memory failure on the stand as to something. Offutt v. United States, 2026 U.S. Dist. LEXIS 231418 (S.D. Ill. Oct. 8, 2026).*
Defendant had no reasonable expectation of privacy in a window area of a hallway outside the apartment searched that was just as readily accessible to two other apartments. And, defendant didn’t live in any apartment. United States v. Guerrero, 2026 U.S. Dist. LEXIS 231956 (D. Mass. Oct. 9, 2026).*
The court doesn’t have to decide standing or scope of consent. Inevitable discovery applies. The officers plainly had enough information for probable cause and would have otherwise sought a warrant. “The First Circuit has repeatedly found the inevitable discovery doctrine applicable under similar circumstances.” United States v. Sanchez, 2026 U.S. Dist. LEXIS 231005 (D. Mass. Oct. 8, 2026).*
W.D.Pa.: SW for cell phone on def at time of drug arrest was particular
Defendant’s cell phone particularity objection to the warrant fails because it showed (1) crime involved, (2) ID’ed them as found on him at time with a gun and drugs, and (3) showed nexus. Also, the good faith exception would apply. United States v. Morgan-Graham, 2026 U.S. Dist. LEXIS 231811 (W.D. Pa. Oct. 9, 2026)*:
Continue reading