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- LA4: Merely having a concealed firearm isn’t RS for a frisk
- OR: Merely driving off the road wasn’t RS, but adding the driver’s demeanor at the time was
- OH6: Trial court’s failure to explain RS under Rodriguez required remand
- CA6: Asking def before a patdown during arrest what he had on him wasn’t barred by Miranda
- NY Queens: PC shown for SW blood drawn at hospital after car wreck
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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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--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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Category Archives: Overseizure
W.D.Wash.: iCloud SW temporal limit was impractical
An iCloud search warrant was not overbroad because the warrant sought a lot of material. Based on Apple’s protocols, it essentially had to be, and a time restriction wouldn’t be of any use. United States v. Woolard, 2021 U.S. Dist. … Continue reading
AL: A visitor to premises targeted by a SW who is more than a “transient visitor” is subject to search
Defendant was a visitor at a house that was searched under a warrant for drugs. Her purse was searched, too. “Because Powers was more than a ‘transient visitor’ at Moyers’s house and had a known relationship to the premises, and … Continue reading
CA7: Computer search condition was not related to crime of conviction and was thus unreasonable
Defendant’s computer search release condition had no rational relationship to the crime. He was not a sex offender and there was no computer link to his crimes. United States v. Morgan, 2021 U.S. App. LEXIS 2972 (7th Cir. Feb. 3, … Continue reading
OH2: The fact a SW had a laundry list of 182 things to search for and seize isn’t fatal where def doesn’t show what was overseized
The search warrant here was for illegal fireworks and listed 182 items to be seized, including fireworks. “Johnson also contends the warrant is invalid because it authorized the seizure of a boilerplate list of 182 items, all or most of … Continue reading
TX1: SW to seize blood sample implicitly means it can be tested, too
A search warrant for a blood sample implicitly includes testing it. Davis v. State, 2020 Tex. App. LEXIS 5990 (Tex. App. – Houston (1st Dist.) July 30, 2020). Probable cause existed for seizure of five years of defendant’s Gmail account. … Continue reading
CA2: Second Tasing of nonresisting detainee was unreasonable
On this record, the second Tasing of plaintiff could be found unreasonable for lack of resistance, which the jury did. Jones v. Treubig, 2020 U.S. App. LEXIS 19883 (2d Cir. June 26, 2020). The search under defendant’s consent for “firearms/evidence” … Continue reading
M.D.Fla.: Exclusionary rule applies to overseizure of tracking information, but blanket suppression not required
There was probable cause for issuance of historical cell phone tracking information and connecting defendant to the phone. The affidavit, however, only sought information for one day, but the warrant covered seven days. The overseizure is suppressed because the exclusionary … Continue reading
CA6: Ptf stated claim for unreasonable continued detention after state’s case collapsed when forensic search of computer came up negative
Plaintiff was arrested for child pornography when officers executed a search warrant at his house based on a video uploaded via the IP address and router in the house. There was probable cause for the arrest, but not for the … Continue reading
CT: Dismissal not appropriate remedy here for violation of A-C privilege in execution of SW
Defendant did not show that all the documents seized were attorney-client privileged for purposes of litigation. Some were. However, dismissal is not the appropriate remedy, despite the fact privileged information made it into the media from the arrest warrant materials. … Continue reading
D.Ariz.: Overseizure of emails by SW didn’t require suppression of all; GFE also applies
This search warrant was issued in a SSA fraud case alleging a decade of false claims. The search warrant was sufficiently particular and not overbroad. The fact the period of the alleged offense was through January 2014 did not prohibit … Continue reading
D.Haw.: Def failed in her motion to reconsider overseizure by failure to specify exactly what was
Defendant’s motion to suppress was previously denied, but she was allowed to specify what documents were overseized. “[T]he court will consider a motion to suppress specific documents or other evidence based on proof that such items were seized and that … Continue reading
CA1: Alleged overseizure of email under SW would only require partial suppression; def doesn’t identify that which was overseized
Defendant’s motion to suppress electronic data acquired by a Rule 41(e)(2)(B) search warrant on his email account was properly denied. Based on the absence of a time limit in the warrant, it was not unreasonable to interpret the warrant to … Continue reading
MT: Overseizure of contents of cell phone didn’t prejudice def where the overseized information was not offered at trial
Defendant argued that the search of his cell phone violated the Fourth Amendment because more was seized than the warrant allowed. Since none of the excess was offered by the state, he wasn’t prejudiced, and the over seizure didn’t void … Continue reading
S.D.N.Y.: Seizure of 21 privileged documents out of 1.3M wasn’t a 4A or privilege violation
The government seized 1.3M documents, and 21 apparently were privileged. This doesn’t show that the government was willful disregarding the warrant or the need to protect privileged materials. His iPhone and laptop were properly seized by plain view then subjected … Continue reading
CA4: Def’s unlocking cell phone without sharing passcode was not communicative act
The officer who had defendant’s cell phone asked her to unlock it. She entered the passcode without sharing it or him seeing her do it. It wasn’t a communicative act. It’s like providing a key. Her motion to suppress the … Continue reading
S.D.W.Va.: Computer SW for drugs led to healthcare fraud evidence; second SW needed; exclusionary rule should apply to deter
The government had a search warrant of ESI for drugs. When the search warrant was executed, they found evidence of healthcare billing fraud. A second search warrant was required, citing the government’s own search manual [noted and linked on the … Continue reading
IA: SW for premises includes whole house, and bedroom of a visitor with a separate REP is still subject to search
Defendant was staying at the house of another when a search warrant for the premises was executed. He argued that his particular bedroom wasn’t subject to search under the warrant because he had a separate expectation of privacy in the … Continue reading
CA6: Medical clinic wasn’t “permeated with fraud” justifying an “all records” seizure, but SW was particular enough for a substantial seizure
The district court held that the defendant’s medical clinic was “permeated with fraud” justifying an “all records” seizure. The court of appeals disagrees. There was a fair amount of potential fraud, but it wasn’t obvious. Still, the warrant had particularity … Continue reading
N.D.Tex.: Two defs given standing to challenge seizure of their emails on co-def business’s account
Defendants were charged in a dietary supplement mislabeling conspiracy. On the claim of overseizure, the warrant specified “angeline” but the court concludes anything related to it was seizable as well without violating particularity. Two defendants were given standing to challenge … Continue reading
CA4: Seizure of Nazi materials in a SW for an ISIL suspect was reasonable because both are defined as terrorist organizations
Defendant was alleged to be connected to ISIL, and, in a terrorism investigation, the government executed a search warrant at his home. Seizure of Nazi materials wasn’t outside the scope of the search warrant: “a reasonable officer would be able … Continue reading