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ABA Journal Web 100, Best Law Blogs (2017); ABA Journal Blawg 100 (2015-16) (discontinued 2018)
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© 2003-23,
online since Feb. 24, 2003 Approx. 350,000 visits (non-robot) since 2012 Approx. 45,000 posts since 2003 (25,700+ on WordPress as of 12/31/22)~~~~~~~~~~~~~~~~~~~~~~~~~~
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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Federal Law Enforcement Training Center Resources
FBI Domestic Investigations and Operations Guide (2008) (pdf)
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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
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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"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!”
"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: Probable cause
AF: Telling wife in jail call to delete a social media account AFOSI was looking to search was obstruction
While defendant was in pretrial confinement, he called his wife and instructed her to delete a social media account that the government was intending to search. This led to his obstruction charge. The call was monitored by the jail. United … Continue reading
CA5: Officer gets QI for shooting into a car under these circumstances
In a case of shooting into a car, “In sum, plaintiffs have not pointed to sufficient authority clearly establishing that Coborn’s conduct violated the law under the specific circumstances he was facing, and thus he is entitled to qualified immunity.” … Continue reading
CA2: Inventory policy here was attached to pleadings and sufficed
The vehicle inventory search was testified to be within ATF policy, which was attached to the pleadings, and it was. United States v. Brack, 2023 U.S. App. LEXIS 12197 (2d Cir. May 18, 2023). Officers observed two people making likely … Continue reading
OH3: Officers had PC without regard to what CI said
The officers had probable cause for defendant’s stop without regard to what the CI said, so failure to corroborate the CI had no effect on the outcome. State v. Harrison, 2023-Ohio-1618 (3d Dist. May 15, 2023).* Defendant’s stipulated plea agreement … Continue reading
CA2: GFE applies to particularity of SWs too
The good faith exception applies to particularity questions where the officer cannot reasonably be expected to question the scope of the warrant. United States v. Walker, 2023 U.S. App. LEXIS 11798 (2d Cir. May 15, 2023). “Given that a police … Continue reading
S.D.Ga.: SW for premises is for evidence and requires no crime on the premises
“An affidavit seeking a search warrant for a residence need not contain ‘an allegation that the illegal activity occurred at the location,’ … but it ‘should establish a connection between the defendant and the residence to be searched and a … Continue reading
TN: Bounty hunter is not a state actor for 4A
A bailbond bounty hunter is not a state actor for the Fourth Amendment. State v. Wojnarek, 2023 Tenn. Crim. App. LEXIS 160 (May 10, 2023). A Delaware JP issued this search warrant, and it was with probable cause. United States … Continue reading
NY Albany: SW’s problematic time limits support severability
The time limits on the scope of the warrant are problematic, but severable. People v. Williams, 2023 NY Slip Op 23137, 2023 N.Y. Misc. LEXIS 2165 (Albany Co. May 8, 2023).* In a sex trafficking case, probable cause was shown … Continue reading
CA3: When relying on social media posts for PC, innocent explanations aren’t required
The warrant affiant adequately corroborated the CIs. When relying on jewelry visible in defendant’s social media posts, it isn’t necessary for the affiant to prove they are real or actually his. For probable cause, innocent explanations don’t have to be … Continue reading
CA5: 4A doesn’t apply to a letter carrier
“In co-defendant Johnlouis’s case, our court upheld the denial of the motion to suppress because we determined that the letter carrier was ‘not a government actor to whom the Fourth Amendment applies.’ United States v. Johnlouis, 44 F.4th 331, 337 … Continue reading
N.D.W.Va.: Pulling open def’s pocket to search it was intentional and unreasonable; exclusionary rule applied
Pulling open defendant’s pocket to search it was intentional and required applying the exclusionary rule. United States v. Jenkins, 2023 U.S. Dist. LEXIS 74739 (N.D. W.Va. Apr. 28, 2023). The close relationship between the participants supported probable cause. It was … Continue reading
D.Minn.: Warrant for ion scan of defendant’s door and door frame was issued on PC
Because a drug dog wouldn’t alert to fentanyl, the government showed probable cause on the totality of circumstances for an ion scan of defendant’s apartment door for traces of fentanyl. Warrants for ion scans have been approved in other cases. … Continue reading
PA: No standing to challenge Google SW for who searched rape victim’s name before crime
In a home invasion rape case, the state sought from Google search information involving the victim’s name in the 48 hours before the rape, and there were searches for that from defendant’s IP address. Defendant had no reasonable expectation of … Continue reading
IL4: Despite legalization of possession of small amounts of MJ, dog alert still PC
The drug dog’s “positive alert on the vehicle in this case established a fair probability that drugs or evidence of a crime would be found in the vehicle. This is true despite recent changes in the law regarding the legalization … Continue reading
OH12: Fact LEO broke traffic laws to catch speeder isn’t a 4A reasonableness defense
The fact a police officer arguably broke traffic laws to effect a stop of a fleeing motorist isn’t a defense to a traffic stop under the Fourth Amendment or the state constitution. State v. Johnson, 2023-Ohio-1320, 2023 Ohio App. LEXIS … Continue reading
CA11: Mere fact of a firearm in the home wasn’t exigency here
“Although Officer Plesnik now arrived with the knowledge that there was a firearm on site, the mere presence of a firearm—without more—did not transform the non-exigent scene into an exigent circumstance and trigger the emergency aid exception. Indeed, by the … Continue reading
OH5: Admission of MJ but no MMJ card was PC
Admission there was marijuana in the car and nobody had a MMJ card was probable cause. State v. Hale, 2023-Ohio-1057, 2023 Ohio App. LEXIS 1025 (5th Dist. Mar. 30, 2023). A conclusory allegation that false information in an affidavit for … Continue reading
D.N.M.: Search warrants are directed at places, not persons; offender need not be mentioned
Search warrants are directed at places, not persons. “Because, at the time of the oral affidavit, there was a fair probability the crime of kidnapping occurred and a fair probability evidence of that crime would be found in Defendant’s home … Continue reading
CA2: No REP shown in porch shared with neighbor
Defendant shared a porch with his neighbor and made no effort to show a reasonable expectation of privacy in it. United States v. Lewis, 2023 U.S. App. LEXIS 6689 (2d Cir. Mar. 21, 2023).* The exclusionary rule doesn’t apply in … Continue reading
E.D.Wis.: PC for a place can be shown by inference
Probable cause evidence can be found in a particular place can be shown by inference, and direct evidence not required. United States v. Hayes, 2023 U.S. Dist. LEXIS 45203 (E.D. Wis. Jan. 17, 2023),* adopted, 2023 U.S. Dist. LEXIS 44211 … Continue reading
