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- CA7: No QI for 2015 detention of 16 year old without justification
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ABA Journal Web 100, Best Law Blogs (2015-17) (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 -
© 2003-25,
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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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, 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
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 →
VA: Driver can’t consent to search of passenger’s purse
Driver’s consent to search did not extend to a woman’s purse that obviously wasn’t his. Myers v. Commonwealth, 2025 Va. App. LEXIS 138 (Mar. 4, 2025). On the totality of the circumstances, including a suspected drug transaction, the vehicle’s evasive … Continue reading →
CA5: The affidavit for SW was more than “bare bones” and the GFE applied
The affidavit for the warrant wasn’t “bare bones.” It alleged facts and nexus could be inferred, even if probable cause couldn’t be fully shown. Therefore, the good faith exception applied. United States v. Norman, 2025 U.S. App. LEXIS 4908 (5th … Continue reading →
CA10: Def’s “self-search” of his bag was consensual
At the Albuquerque Greyhound stop, defendant encountered DEA officers on the bus and ultimately opened his own bag and showed the contents. This “self-search” was consensual, and he was told he had a right to refuse. United States v. Jackson, … Continue reading →
S.D.Cal.: Officer doesn’t need a window tint meter in hand to justify a stop for overtinted windows
“But clearing the low bar of reasonable suspicion requires little more. Police need not ‘carry around and use burdensome equipment to measure light transmittance.” United States v. Wallace, 213 F.3d 1216, 1220 (9th Cir. 2000) (quoting People v. Niebauer, 263 … Continue reading →
GA: Search incident of a car for a DUI is permissible
Search incident of a car for a DUI is permissible in Georgia. Morris v. State, 2025 Ga. App. LEXIS 41 (Feb. 6, 2025). Misstating the implied consent law to defendant made defendant’s consent invalid. State v. Johnson, 2025 Haw. App. … Continue reading →
D.Minn.: Rehashing 4A argument to USMJ isn’t a proper objection to the R&R
Defendant’s general objections to the R&R on his search claims don’t attempt to show the alleged errors in the USMJ’s reasoning and just rehashed the original arguments. Overruled, and adopted. United States v. Shaka, 2025 U.S. Dist. LEXIS 19267 (D. … Continue reading →
KS: Def voluntarily disclosed his cell phone passcode to the officers when the officer said he’d get a warrant
Defendant voluntarily disclosed his cell phone passcode to the officers when the officer said he’d get a warrant for it. State v. Harris, 2025 Kan. LEXIS 5 (Jan. 31, 2025):
CA6: SW for safe 5 days after seizing it was a reasonable delay
The seizure of defendant’s safe was with probable cause. Getting a warrant to search it five days later was reasonable. United States v. Grundy, 2025 U.S. App. LEXIS 1526 (6th Cir. Jan. 22, 2025).* The totality of circumstances showed probable … Continue reading →
CA7: Even if police potentially escalated the situation, ptf’s use of a gun justified deadly force
Even if the officers failed to properly announce themselves and even if the defendants’ actions exacerbated the possibility of a dangerous confrontation, Ancheta’s action, the use of his gun, was an intervening cause of the deadly force. The defendants escalated … Continue reading →
CA9: Consent obtained by trickery is not voluntary
Consent obtained by trickery is not voluntary. United States v. Beland, 2025 U.S. App. LEXIS 1019 (9th Cir. Jan. 16, 2025). “[T]here is no indication from the record that the consent was in any way coerced, that Fiallos-Pena and Verganza … Continue reading →
DE: Probation searches of individuals include their residence
The statute on individuals subject to probation searches includes their residences. State v. Crooks, 2024 Del. Super. LEXIS 830 (Dec. 31, 2024). There were exigent circumstances based on the reported gunshot, potential threat to officers and public safety, and the … Continue reading →
TX: Judge sanctioned for blocking DNA testing of class A misdemeanants without authority
A former judge of the Harris County Criminal Court was sanctioned by the Texas Supreme Court for issuing orders of protection barring the Sheriff from taking DNA samples from class A misdemeanants because the judge believed the statute requiring it … Continue reading →
E.D.Mo.: No claim where no damages shown for alleged unreasonable dog sniff; nothing was found, detention was otherwise reasonable
Officers were surveilling a van that they believed might have a connection to an unsolved homicide. They observed what appeared to be hand-to-hand drug transactions, and the van’s LPN was expired. They approached. There were others around the van, and … Continue reading →
WI: Not coercive to tell def officer will get SW if he doesn’t consent when there is PC
It’s not coercive to tell a suspect that the officer will get a search warrant if he doesn’t consent when there’s probable cause. State v. Gore, 2025 Wisc. App. LEXIS 7 (Jan. 7, 2025). There was probable cause for defendant’s … Continue reading →
W.D.Pa.: Hidden bodycams used to record conversations in unmarked police cars between officers violated REP
Hidden bodycams used to record conversations in unmarked police cars between officers violated a reasonable expectation of privacy and likely Title III. Baker v. City of Pittsburgh, 2025 U.S. Dist. LEXIS 2157 (W.D. Pa. Jan. 6, 2025). The search of … Continue reading →
E.D.Mo.: Even though threatened with obstruction if he didn’t, defendant consented to seizure of cell phone
The officer had probable cause to believe defendant took a video of a young girl in his house in the bathtub. Defendant was persuaded to turn over the phone and it was consensual. He was told that he might be … Continue reading →
E.D.Ky.: § 1983 complaint against his state case is barred by Younger
Plaintiff’s § 1983 complaint against his state case is barred by Younger. Cuffee v. Cabuay, 2024 U.S. Dist. LEXIS 233153 (E.D. Ky. Dec. 27, 2024).* Defendant has no standing to challenge the search of another person’s cell phone. United States … Continue reading →