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ABA Journal Web 100, Best Law Blogs (2017); ABA Journal Blawg 100 (2015-16)
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© 2003-21,
online since Feb. 24, 2003
WebPage Visits: real non-robot hits since 2010; approx. about 30,000 posts since 2003~~~~~~~~~~~~~~~~~~~~~~~~~~
Fourth Amendment cases,
citations, and linksLatest Slip Opinions:
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To search Search and Seizure on Lexis.com $Research Links:
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Briefs online (but no amicus briefs)
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Federal Law Enforcement Training Center Resources
FBI Domestic Investigations and Operations Guide (2008) (pdf)
DEA Agents Manual (2002) (download)
DOJ Computer Search Manual (2009) (pdf)
Stringrays (ACLU No. Cal.) (pdf)
Congressional Research Service:
--Electronic Communications Privacy Act (2012)
--Overview of the Electronic Communications Privacy Act (2012)
--Outline of Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012)
--Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012)
--Federal Laws Relating to Cybersecurity: Discussion of Proposed Revisions (2012)
ACLU on privacy
Privacy Foundation
Electronic Frontier Foundation
NACDL’s Domestic Drone Information Center
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Criminal Appeal (post-conviction) (9th Cir.)
Section 1983 Blog"If it was easy, everybody would be doing it. It isn't, and they don't."
—Me“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"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!”
"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."
---Pepé Le Pew
—Johnson v. United States, 333 U.S. 10, 13-14 (1948)
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Category Archives: Prison and jail searches
CA5: Claim stated for excessive force for allowing dog to bite subdued arrestee
Plaintiff stated a claim for a dog bite after he was subdued, and there would be no qualified immunity. Hinson v. Martin, 2021 U.S. App. LEXIS 12775 (5th Cir. Apr. 29, 2021).* There was arguable probable cause for plaintiff’s arrest … Continue reading
E.D.Cal.: Ptf inmate’s unreasonable prison strip search case survives screening
Plaintiff, an inmate at Corcoran, stated enough to survive screening for his prison strip search case. Jacobs v. CDCR, 2021 U.S. Dist. LEXIS 66813 (E.D. Cal. Apr. 6, 2021):
S.D.N.Y.: No REP in medical questioning in jail
There is no reasonable expectation of privacy against medical questioning in a jail. Jones v. Quinones, 2021 U.S. Dist. LEXIS 59654 (S.D. N.Y. Mar. 26, 2021). The search warrants for a business that was searched by ICE remain under seal. … Continue reading
TX1: Police coming to door for knock-and-talk wasn’t a trespass
Police came to defendant’s door for a knock-and-talk, and, when he opened it, the officers smelled marijuana. They went off for a search warrant. Approaching the door for a knock-and-talk was not a trespass. Howard v. State, 2021 Tex. App. … Continue reading
E.D.Ark.: Stopping highspeed chase with motorcycle by causing accident not unreasonable under Scott
An officer’s pulling in front of a motorcycle eluding police at 105 mph was not a Fourth Amendment violation. “Accordingly, even if Duvall pulled his car over in a manner likely to cause the collision and serious injury or death, … Continue reading
M.D.Ala.: Some force inheres in any arrest; de minimus force is reasonable
Some amount of force occurs in any arrest. The question is unreasonableness. “Garrett’s conclusory allegation regarding Williams’s specific actions establishes no more than the use of de minimis force by Williams, which does not constitute a Fourth Amendment violation.” Garrett … Continue reading
C.D.Ill.: Prison strip searches are always permitted, unless done unreasonably
Inmates seen naked in prison is not a constitutional claim unless it was all done in an unreasonable manner. The limited facts here fail to show that. Danuk v. Downey, 2021 U.S. Dist. LEXIS 45383 (C.D. Ill. Mar. 11, 2021):
E.D.N.Y.: Def gets access to SW materials, but govt can redact informant’s info
The target of a search warrant long ago served is entitled to unsealing the affidavit, but the government can redact the affiant’s name and identifying information. United States v. Storage Room Numbers, 2021 U.S. Dist. LEXIS 35977 (E.D. N.Y. Feb. … Continue reading
LA1: Probationer wearing GPS ankle monitor has no REP in information about his movements
A probationer wearing a GPS ankle monitor has no reasonable expectation of privacy in the information that linked him to an armed robbery while he was on probation. State in the interest of T.B., 2021 La. App. LEXIS 188 (La. … Continue reading
IA: Reasonable inference owner of car was driving where owner had a suspended DL
It was a reasonable inference that the owner of a vehicle with a suspended license was driving when the vehicle was seen because the officer’s experience [and commonsense by now] shows that persons with suspended licenses continue to drive. That … Continue reading
SD: Inverse condemnation doesn’t lie for damage caused by execution of SW
Surveying cases from other jurisdictions, the South Dakota Supreme Court decides that inverse condemnation claims do not lie under the state’s eminent domain provision ( “[p]rivate property shall not be taken for public use, or damaged, without just compensation[.]”) for damage to … Continue reading
M.D.Fla.: State court’s findings on PC [not appealed] not binding on federal court
A state court’s findings of lack of probable cause to proceed with some charges against the defendant isn’t binding on federal courts. “Based on the evidence presented at the hearing, including the 911 calls, bodycam footage, and the credible and … Continue reading
CA11: Not IAC to not challenge recording jail calls
Defense counsel wasn’t ineffective for not challenging recording jail calls [actually stated as a 2254(d) failure]. Garcia v. Sec’y, 2021 U.S. App. LEXIS 314 (11th Cir. Jan. 6, 2021).* The CSLI warrant was particular and not a general warrant, and … Continue reading
NY: Reversal for 4A violation isn’t “favorable termination” for malicious prosecution claim
Reversal because of a Fourth Amendment violation isn’t a “favorable termination” for malicious prosecution claims. Butler v. City of New York, 2020 NY Slip Op 33363(U), 2020 N.Y. Misc. LEXIS 10130 (N.Y. Co. Oct. 14, 2020) (Martinez v. City of … Continue reading
NY: Stop for center brake light being out was reasonable basis under statute
The trial court’s grant of the motion to suppress was error. The officer’s reading of the functioning brake light statute was reasonable that the center light being out was cause for a stop. People v. Pena, 2020 NY Slip Op … Continue reading
CA5: Ptf’s manual strip and body search in prison for a missing syringe was reasonable
Plaintiff’s manual strip and body search in prison for a missing syringe was reasonable. Parker v. Woods, 2020 U.S. App. LEXIS 36359 (5th Cir. Nov. 19, 2020):
CA5: Def’s contesting authenticity of jail calls let the govt establish they came from jail
Not a search claim: Admission of jail telephone calls didn’t undermine the presumption of innocence. Defendant wouldn’t stipulate to authenticity so the government had to establish the source of the calls. United States v. Arayatanon, 2020 U.S. App. LEXIS 35922 … Continue reading
IN: Officers had sufficient suspicion of contraband on the person for a booking strip search
Officers had the requisite degree of suspicion for a strip search at the jail for a misdemeanor. He had suspicions there was something amiss with defendant’s unusual small talk, but, coupled with the facts, added up. Reagan v. State, 2020 … Continue reading
D.S.D.: Seizure of work product from def’s jail cell for witness tampering was reasonable and run through a taint team
The search of defendant’s jail cell for evidence of witness tampering in his “work product” was reasonable, and the government used a taint team to segregate it. “The government’s conduct in this case was neither ill-conceived nor outrageous. It must … Continue reading
