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- CA2: Def’s GF using passcode to open his phone in presence of police wasn’t a governmental search
- WaPo: New Orleans pushes to legalize police use of ‘facial surveillance’
- N.D.Ind.: Pro se def’s post-trial motion to dismiss for 4A issue he didn’t fully appreciate timely is denied
- CA11: “[T]he presence of contradictory evidence does not bar a finding of probable cause”; It must refute it
- D.Mont.: Civil demand for BAC test in Indian country did not violate HIPAA
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ABA Journal Web 100, Best Law Blogs (2015-17) (then discontinued)
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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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--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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Category Archives: Consent
D.C.Cir.: Ptf stated 1A retaliation claim over civil investigative demand
Media Matters stated a claim in D.C. for First Amendment retaliation by the Texas Attorney General’s civil investigative demand for records based on not liking their reporting. Injunction affirmed. Media Matters for America v. Paxton, 2025 U.S. App. LEXIS 13155 … Continue reading →
D.Kan.: Can invoke Randolph objection to consent without objecting
Defendant’s live-in girlfriend consented to a search of their apartment when he was arrested and removed. He can’t invoke Randolph because he never objected. United States v. Lee, 2025 U.S. Dist. LEXIS 100923 (D. Kan. May 28, 2025). Defendant’s refusal … Continue reading →
MT: Use of a flashlight to look in a parked car was not 4A violation
Police use of a flashlight to look in a car in a parking lot the officer was interested in because the operator was on probation was reasonable. State v. Roberts, 2025 MT 110, 2025 Mont. LEXIS 567 (May 27, 2025). … Continue reading →
MI: Taking and searching def’s cell phone after DA’s interview was not by consent
Defendant was questioned under a prosecutor’s subpoena, and they decided to take his phone to search it. The state’s argument of consent fails because he was told they were taking it and had probable cause but they didn’t. People v. … Continue reading →
MI: Exigency for seeking cell phone consent doesn’t require actual knowledge def might destroy evidence on it
Defendant consented to seizure of his cell phone after officers learned there might be child sexual abuse material on it. A search warrant later issued. All this was reasonable. The officer doesn’t have to have evidence that defendant might delete … Continue reading →
CA3: Nodding yes to a request to search was consent
Defendant’s nodding yes to a request to search was consent to search the car. The officers might have believed he didn’t have standing since he was a mere passenger at the time. He didn’t mention facts supporting standing until at … Continue reading →
CA9: Electronic monitoring condition of pretrial release was essentially a contract between def and court, thus consent
The Superior Court of San Francisco imposes electronic monitoring as a condition of pretrial release. Because it’s essentially a contract between the defendant and court, it’s consent to EM for release. It also does not violate state separation of powers. … Continue reading →
CA7: Post search statement of promise for consent didn’t affect consent to search
“Marcure also asserts that an officer coerced his consent by promising him that no charges would be filed, but even if a statement like this can be coercive, the complaint states that the promise occurred ‘[a]fter the search was finished.’ … Continue reading →
E.D.Wis.: Affidavit’s statement def was in surveillance video was reasonable and not reckless
Officer’s statement that defendant was in a surveillance video was a reasonable conclusion, and not a reckless overstatement for Franks. United States v. Warren, 2025 U.S. Dist. LEXIS 70293 (E.D. Wis. Apr. 14, 2025).* Defendant passed up a conditional plea … Continue reading →
NJ recognizes right to advice of counsel before request for consent
The right to advice of counsel under the Fifth Amendment has to be read together with the Fourth Amendment and a request for consent. Other states do not, but New Jersey does. Defendant was asked for consent inside his own … Continue reading →
MD: When asked if def “minded” to consent to a frisk, he consented
Defendant was stopped for a traffic offense, and the officer asked about whether he was armed and whether he “minded” to consent to a frisk. He argued that he had no choice but to answer, but he did have a … Continue reading →
E.D.Ky.: SW affidavit failed to show PC for search of house, but it wasn’t so lacking the GFE doesn’t apply
The affidavit for search warrant here was based on suspicious circumstances but doesn’t show nexus to defendant’s house that he was engaging in drug trafficking from there just from living there. “Ultimately, the evidence in the affidavit did not create … Continue reading →
MT: SW obviates implied consent for BAC test
The police having obtained a search warrant for defendant’s BAC, the implied consent statute doesn’t apply. State v. Clinkenbeard, 2025 MT 54 (Mar. 25, 2025). Defendant’s long standing drug trafficking was not stale. 2022 information was refreshed by 2023 information. … Continue reading →
S.D.N.Y.:The fact that the Government intends to prove that the property belongs to Defendant does not establish standing
“The fact that the Government intends to prove that the property belongs to Defendant does not establish standing. See, United States v. Watson, 404 F.3d 163, 166 (2d Cir. 2005) (‘[D]efendant could not challenge the search of a residence merely … Continue reading →
S.D.W.Va.: Def’s agreement to let police see his firearm isn’t implied consent to enter his house
Defendant’s agreement to let police see his firearm isn’t implied consent to enter his house. United States v. Arthur, 2025 U.S. Dist. LEXIS 51621 (S.D. W. Va. Mar. 20, 2025). Defendant failed to plead standing in his motion to suppress … Continue reading →
PA: Entry of curtilage to inquire of a chop shop in operation was reasonable
Officers saw defendant “dissecting a motor vehicle in his driveway,” i.e., running a chop shop, which they already suspected him of. They could enter the curtilage to inquire. Commonwealth v. Ewida, 2025 PA Super 67, 2025 Pa. Super. LEXIS 128 … Continue reading →
AK: Public court filings violate no REP
“Herndon’s argument that her rights under the Fourth Amendment were violated when the superior court ‘commingled [her] private filings making it public’ is without merit. Herndon has no reasonable expectation of privacy in information that she voluntarily submitted to the … Continue reading →
VI: Wife had apparent authority to consent to search for firearm in bedroom, even if they didn’t share it
Defendant’s wife had apparent common authority to consent to a police entry while defendant slept. She led police into the home and directed them to the handgun in defendant’s bedroom closet. This satisfied co-occupant consent. They lived together, she knew … Continue reading →
CA10: Shooting yourself and calling 911 is consent to removing the bullet
Defendant reported he was shot by an intruder and called 911. He went to the hospital and a surgeon removed the bullet. The search warrant for his office for evidence of him shooting himself was specific and the good faith … Continue reading →
WA: Warning of right to refuse consent search only applies to knock-and-talk
Warning of a right to refuse a consent search is only required for knock-and-talk. This was an animal cruelty case, and officers had been there repeatedly to observe horses with consent. Finally, they got a warrant to enter the enclosure … Continue reading →