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Recent Posts
- W.D.Ark.: Parole search waiver moots lack of PC argument
- AR: RS shown for boating while intoxicated stop
- W.D.Mo.: Wrong address in SW wasn’t fatal where right house was searched
- NY: Failure to show independent source for officer’s observation of def required reversal
- VA: Outline of a gun in def’s pocket was RS
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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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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)
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Section 1983 Blog -
"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: Waiver
CA11: Failure to object to USMJ’s 4A analysis in R&R is waiver
Failure to object to the U.S. Magistrate Judge’s factual and legal conclusions on the search claim in the R&R is waiver. Thus he “waived his right to appeal the conclusions in the R&R.” Summarily affirmed. United States v. Kelly, 2024 … Continue reading
CA5: Open container justified extending the stop under Terry-Rodriguez
Defendant’s open container justified extending the stop under Terry-Rodriguez. United States v. Phillips, 2024 U.S. App. LEXIS 1929 (5th Cir. Jan. 29, 2024). Reasonable suspicion developed during each step of the stop. “The stop, measured from when Trooper Miller stopped … Continue reading
CA2: Where PC and GFE found by District Court, both have to be argued on appeal or waiver occurs
The district court found probable cause and the good faith exception applied. On appeal, he argued only probable cause. The alternative ground of good faith was thus waived and the court can affirm. United States v. McGregor, 2024 U.S. App. … Continue reading
WA: Merely holding on to DL doesn’t make stop a detention; “context matters”
“Officer Ayers’s language would have assured a reasonable person that the officer was not making a show of authority: the officer assured Mr. Taylor he was not a suspect, but wanted to ‘get [his] name just so we have that … Continue reading
N.D.Tex.: Suppression in forfeiture is Supp.Rule G(8)(a) not Rule 41
The government sought forfeiture of the owner’s cash after it was seized at DFW after a dog sniff on his bag. The owner responded with a motion to suppress under Rule 41, but that doesn’t apply in forfeiture cases. Supplemental … Continue reading
D.D.C.: 1/6 geofence warrant was for phones within the crime scene and was reasonable
The 1/6 Capitol geofence warrant was issued with probable cause and was specific, limited to those within the Capitol or on the restricted grounds, not just near it. United States v. Easterday, 2024 U.S. Dist. LEXIS 8978 (D.D.C. Jan. 18, … Continue reading
DC parolee’s GPS monitor can only be placed by court order
Defendant’s GPS monitoring while on D.C. parole was unauthorized without an order from the sentencing court. It also doesn’t fit under Knights and Samson and special needs. Therefore, its use here to connect defendant to a crime is suppressed. Davis … Continue reading
OH10: Handing backpack to friend to hold was not abandonment
“However, abandonment for Fourth Amendment purposes differs from abandonment in terms of property law. ‘In the context of search and seizure law, abandonment refers to a manifestation or appearance that the person has no interest in the property, rather than … Continue reading
N.D.Tex.: Video camera in pretrial detainee’s cell that showed the toilet was reasonable
“Ellis alleges that the placement of cameras in his cell that could record the toilet violated his Fourth Amendment right to privacy and constituted a state tort of invasion of privacy. ECF No. 19 at 19-22. But a pretrial detainee … Continue reading
OH8: State showed need for evidence for further investigation after indictment dismissed without prejudice so no return
Evidence was seized, including a cell phone, and defendant was charged with a violent crime. As the case progressed to trial, the state moved to dismiss without prejudice so it could investigate further. Defendant sought return of the evidence. On … Continue reading
D.Mass.: No PC here, and government’s GFE argument is generic and unhelpful
The affidavit for warrant here failed to show probable cause to believe a pill manufacturing operation would be found there. There was old information in the affidavit, but it was stale on its own. Also, defendants moved in the meantime … Continue reading
OH7: No standing in package with assumed names
Defendant lacked standing in a package shipped under and to assumed names, neither of which could be linked to him as a known alias. State v. Herbert, 2023-Ohio-4490, 2023 Ohio App. LEXIS 4311 (7th Dist. Dec. 11, 2023). “We think … Continue reading
E.D.Tenn.: Items unreasonably seized under SW as outside its scope still not returned because they are forfeitable
Some of the items seized under the warrant were named or were covered by plain view when the police got inside. Some are excludable, but they aren’t returned because the government intends to forfeit. United States v. Abdul-Latif, 2023 U.S. … Continue reading
CA7: Hospital medical staff getting def to spit out machine gun part wasn’t search and they weren’t govt actors
Defendant had a Glock fully auto switch in his mouth while in the hospital. While treating him, the medical staff finally got him to spit it out. That was not a search. The medical staff were not government actors for … Continue reading
CA7: Misuse of dealer tag justified search incident
The district court decided this vehicle search on inventory. On appeal, the court goes with search incident because the vehicle was being driven with improper dealer tags. Officer “Hobbs’s search of the glovebox incident to Travis’s arrest was proper. Evidence … Continue reading
PA: Fleeing a traffic stop and wrecking car and then running off was abandonment of the car
Defendant fled in his car from a traffic stop and wrecked a few blocks away. He abandoned the car at the scene by running off. Commonwealth v. Hall, 2023 PA Super 224, 2023 Pa. Super. LEXIS 513 (Nov. 3, 2023). … Continue reading
M.D.Fla.: “[T]here is no constitutional right to be free from arrest on the basis of illegally obtained evidence.”
“[T]here is no constitutional right to be free from arrest on the basis of illegally obtained evidence.” Santiago v. Swain, 2023 U.S. Dist. LEXIS 194607 (M.D. Fla. Oct. 31, 2023).* Plaintiff’s civil Franks claim fails because there was probable cause … Continue reading
NM: Too vague a description wasn’t RS for this stop, one mile from crime scene, 37-40 minutes later, vague description of car
“We view the totality of the circumstances at the time Deputy Ruiz seized Defendant through the lens of the district court’s factual finding that the suspect did not hide, as our standard of review requires. Based on the passage of … Continue reading
N.D.N.Y.: No REP in def’s social media accounts holding child porn
In a child porn case, defendant can’t show a reasonable expectation of privacy in images in his social media account. “For example, Defendant has not attested as to how he used the social media accounts, what if any privacy settings … Continue reading