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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© 2003-22,
online since Feb. 24, 2003 Approx. 350,000 visits (non-robot) since 2012 Approx. 40,000 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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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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NACDL’s Domestic Drone Information Center
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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: Consent
MD: Consent to search computer was withdrawn before search
Defendant signed a consent to search his computer hard drive to the US Army CID, but, once lawyered up, he effectively withdrew the consent a week later. The hard drive was searched after the withdrawal of consent, and the search … Continue reading →
IN: Juvenile’s blood draw by consent without statutory parental notification suppressed
The juvenile’s consent to a blood draw was without parental notification as required by statute, and it was expressed as a mere formality. The blood draw is suppressed. L.W. v. State, 2022 Ind. App. LEXIS 379 (Nov. 23, 2022). Defendant’s … Continue reading →
AF: Download of CP via Kik app permitted search of other storage devices it could have been transferred to
In this child pornography case, the initial probable cause was downloading it via the Kik app. The warrant included other electronic devices. Defendant’s argument that only smartphones could be searched is rejected. It was logical that images could have been … Continue reading →
M.D.Fla.: Lack of a notary seal on state SW papers is a frivolous 4A issue
The Fourth Amendment argument that lack of a notary seal on Florida search warrant papers makes it void is frivolous. Amalfitano v. United States, 2022 U.S. Dist. LEXIS 209729 (M.D. Fla. Nov. 18, 2022). An officer using a dead man’s … Continue reading →
S.D.W.Va.: Dispatch’s mistake of fact def’s vehicle was unregistered did not make stop unreasonable
Defendant challenged one basis for his stop, an inspection sticker. However, dispatch also said the vehicle was unregistered and that’s a valid reason. It turned out, however, it was validly registered. “It does not matter that Defendant’s vehicle was in … Continue reading →
IL: Smell of burnt mj alone not RS
The smell of burnt cannabis without seeing more is not reasonable suspicion in Illinois. People v. Redmond, 2022 IL App (3d) 210524, 2022 Ill. App. LEXIS 479 (Nov. 15, 2022). On an Anders brief, the inventory search of defendant’s car … Continue reading →
N.D.Ind.: The exclusionary rule is not the remedy for a high-speed chase to capture defendant
The exclusionary rule is not the remedy for a high-speed chase to capture defendant. United States v. Tyms, 2022 U.S. Dist. LEXIS 204894 (N.D. Ind. Nov. 10, 2022) Defendant was finally in custody when the police sought to take his … Continue reading →
NY2: Trial court didn’t deny due process by deciding suppression motion on a ground not argued by state, except for being just wrong on the law
The trial court did not deny due process by deciding the suppression issue on an alternative ground not advanced by the state below. The problem is, however, that the record does not support the result below, and it is reversed. … Continue reading →
GA: Consent to search backpack included laptop inside when def didn’t object
Defendant clearly consented to a search of his backpack. When the officer encountered his laptop and opened it to turn it on, defendant never objected. Winslow v. State, 2022 Ga. LEXIS 297 (Nov. 2, 2022). The underlying facts for reasonable … Continue reading →
CA11: Can’t force a Franks hearing by mandamus; there’s a right to appeal
“Spencer’s claim for mandamus relief is frivolous. Liberally construing his mandamus petition, Spencer appears to seek an order directing the district court to hold a Franks hearing in his underlying criminal case in relation to the seizure of evidence used … Continue reading →
MD: Two men talking at a car idling in a parking lot in a high-crime residential area at 11:30 pm wasn’t RS
Two men talking with another in a car in a high crime area at 11:30 pm in parking lot in a residential area was not reasonable suspicion. One of the men reached into the car, but there’s no way of … Continue reading →
E.D.Pa.: Threat to get SW was real and lawful and did not coerce consent
“Mr. Adams contends that the agents coerced him into giving consent involuntarily when they threatened to seize his phone and hold it until they obtained a search warrant. … I disagree. For the reasons stated below, I conclude that Mr. … Continue reading →
D.Nev.: Ptf states claim AT&T provided real time CSLI to police without warrant
Plaintiff’s complaint that AT&T provided real time CSLI to Reno police without a search warrant states enough of a claim to proceed for now. Houston v. AT&T, 2022 U.S. Dist. LEXIS 194789 (D. Nev. Oct. 26, 2022). Defendant was found … Continue reading →
FL2: With an “extreme display of authority and … ‘overbearing tactics” was not by consent
With an “extreme display of authority and … ‘overbearing tactics” was not by consent. Dydek v. State, 2022 Fla. App. LEXIS 7253 (Fla. 2d DCA Oct. 26, 2022):
M.D.Fla.: Alleged nice “threat” to break down door to enter on warrant was not coercive
Officer’s alleged threat to break down the door stated in a nice tone of voice was not coercive, even if true, because the officer could have. On the totality, there was consent to enter to execute the arrest warrant because … Continue reading →
NC: Not plain error for officer to read from SW affidavit at trial
The officer’s reading from the search warrant affidavit at trial because it contained hearsay may have been error, but it wasn’t plain error. Defendant was free to cross-examine on all of that to mitigate prejudice [if he could]. State v. … Continue reading →
E.D.Cal.: Contraband cell phone in prison can be wiretapped outside of Title III
Because there is no reasonable expectation of privacy in a prison or in a cell phone in prison, a contraband cell phone can be wiretapped without a Title III warrant. United States v. Bash, 2022 U.S. Dist. LEXIS 180680 (E.D. … Continue reading →
SC: Request for consent with “do you mind” met with “I do but …” not voluntary. Also no RS for continuing stop.
“Here, even after accepting the trial court’s factual findings as we must do since they are supported by some evidence, we conclude that Hall lacked reasonable suspicion as a matter of law pursuant to de novo review.” As to consent, … Continue reading →
IN: After federal court suppressed search, feds hand case off to state; no preclusive effect from federal suppression
Under dual sovereignty, the federal court’s suppression of evidence in defendant’s federal criminal case had no preclusive effect on a following state court prosecution. The identity of the parties was different. On the merits, the state court concludes there was … Continue reading →
IA: Federal reverse silver platter of anticipatory SW was valid
Defendant was the target of an anticipatory federal search warrant for drugs. The federal government instead let the state prosecute. The Iowa constitution, however, does not permit anticipatory search warrants. Defense counsel didn’t raise the state constitutional issue before trial. … Continue reading →
