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- CA6: Affidavit about smell of MJ from house was not so bare bones GFE didn’t apply
- WaPo: Police secretly monitored New Orleans with facial recognition cameras
- KY: Def carries burden on curtilage; he failed to show motorcycle parked near front door was on it
- PA: No REP in data on use of EBT card
- WA: 911 call about following a DUI was RS for stop
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ABA Journal Web 100, Best Law Blogs (2015-17) (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 -
© 2003-25,
online since Feb. 24, 2003 Approx. 500,000 visits (non-robot) since 2012 Approx. 47,000 posts since 2003 (30,000+ on WordPress as of 12/31/24) -
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Fourth Amendment cases,
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--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, 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] -
“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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Author Archives: Hall
CA6: Affidavit about smell of MJ from house was not so bare bones GFE didn’t apply
“Even if the search-warrant affidavit at issue lacked probable cause, the district court did not err in denying Noble’s motion to suppress because the good-faith exception applies. The search-warrant affidavit is not bare bones.” The smell of marijuana coming from … Continue reading
WaPo: Police secretly monitored New Orleans with facial recognition cameras
WaPo: Police secretly monitored New Orleans with facial recognition cameras by Douglas MacMillan and Aaron Schaffer (“For two years, New Orleans police secretly relied on facial recognition technology to scan city streets in search of suspects, a surveillance method without … Continue reading
KY: Def carries burden on curtilage; he failed to show motorcycle parked near front door was on it
Defendant’s motorcycle was parked near his front door, but he fails to show that it was within the curtilage of his house. He carries that burden. Bessinger v. Commonwealth, 2025 Ky. App. LEXIS 42 (May 16, 2025):
PA: No REP in data on use of EBT card
Appellant’s argument that the search incident failed because of a lack of an arrest warrant wasn’t presented below so it’s waived. He had no reasonable expectation of privacy in the data on his EBT card that Wawa wouldn’t turn over … Continue reading
WA: 911 call about following a DUI was RS for stop
Officers could rely on a 911 call about an alleged drunk driver who was reporting what she was seeing. “Law enforcement officers may effectuate a Terry stop based on a 911 caller’s tip when the tip is reliable and contains … Continue reading
D.Vt.: Coast Guard’s reboarding boat was with PC
It was revealed there was a firearm on board, and a later warrants check revealed a conviction that was wrong. Yet, it turned out later there was yet another not mentioned. The Coast Guard reboarded and took the gun and … Continue reading
TX5: Warrantless removal of GSR was reasonable
Warrantless swabbing for GSR from defendant’s hands was reasonable because of exigency because it could likely be immediately lost. Argumedo v. State, 2025 Tex. App. LEXIS 3375 (Tex. App. – Dallas May 16, 2025). Defendant’s Franks claim is more like … Continue reading
Reason: New Montana Law Blocks the State From Buying Private Data To Skirt the Fourth Amendment
Reason: New Montana Law Blocks the State From Buying Private Data To Skirt the Fourth Amendment by Joe Lancaster (“The Big Sky State becomes the first to close the ‘data broker loophole’ allowing the government to get private information without … Continue reading
TX5: Def driving his boss’s truck by permission had standing
Defendant driving his boss’s truck by permission had standing. Here, the issue was the scope of his consent to search it. The trial court’s conclusion he only was agreeing that he wasn’t the owner of the truck was sustained on … Continue reading
NY3: Judge who issued SW not barred from handling trial
Defendant’s claim that the judge issuing the search warrant couldn’t preside at the trial was not preserved because there was no objection. It would have failed anyway. People v Coston, 2025 N.Y. App. Div. LEXIS 3046 (3d Dept. May 15, … Continue reading
SCOTUS: Barnes v. Felix: The “totality of circumstances” in excessive force cases includes the entire encounter, not just the moments before force was used
The “totality of circumstances” in excessive force cases includes the entire encounter, not just the moments before force was used. Barnes v. Felix, 2025 U.S. LEXIS 1834 (May 15, 2025) (SCOTUSBlog). From the Syllabus:
OR: Cell phone SW was fatally overbroad for scope of search
This cell phone warrant was based on probable cause, and it was particular as to drug related information with a specific time period. However, it was overbroad because it, as the state argued, essentially let the state seize anything else … Continue reading
OH5: Obvious typo in SW paperwork can be overlooked
Obvious typographical error in search warrant papers can be overlooked. State v. Crisp, 2025-Ohio-1718, 2025 Ohio App. LEXIS 1690 (5th Dist. May 13, 2025). Walking away from a police encounter is permitted, but here the officers had reasonable suspicion based … Continue reading
D.Neb.: Suits against parole board also subject to Heck bar
Suits against parole board members about parole issues are subject to the Heck bar. Also, “Parole board members are absolutely immune from suit, in their individual capacities, when considering and deciding parole questions. Figg v. Russell, 433 F.3d 593, 598 … Continue reading
S.D.N.Y.: SW can issue to find evidence of a conspiracy
Defendant challenges this search warrant which refers to seeking potential evidence of a conspiracy where the officer only has evidence of overt acts. On the totality, the court finds probable cause and nexus and that the warrant is not overbroad. … Continue reading
TX14: Nexus here established by logical inference
The record supported nexus for search warrants for cell phone apparently used to coordinate between two cars that were driving for an hour in a shopping mall parking lot looking for a robbery target. It was logically the only way … Continue reading
MA: SCOTUS isn’t getting ready to get rid of community caretaking function
Because the trial court decided the suppression motion on issues not raised by the parties, the defense gets to argue things he didn’t raise below. The facts here supported the community caretaking function, and the court rejects his suggestion that … Continue reading
Reason: Revised Version of “Data Scanning and the Fourth Amendment”
Reason: Revised Version of “Data Scanning and the Fourth Amendment”; Now up to date. by Orin S. Kerr:
Harvard L. Rev.: Comment: Long Lake Township v. Maxon
Comment: Long Lake Township v. Maxon, 138 Harv. L. Rev. 1941 (2025): While technology advances, do Fourth Amendment rights keep pace to preserve privacy? Or do they get left behind? Regardless of the answer, it would be helpful to at … Continue reading
FL1: Judge issuing SW not barred from presiding over trial
Reviewing search warrant applications is a core function of a judicial officer, and that does not qualify as an improper ex parte communication requiring the trial judge to recuse. Writ of prohibition denied. Adelson v. State, 2025 Fla. App. LEXIS … Continue reading