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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)
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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 -
"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
AZ: Private search and apparent consent don’t support warrantless search of SD card in video voyeurism case
Defendant was convicted of video voyeurism for a camera hidden in the bathroom of his house to record foster children. One of them found it, attempted to read the SD card but failed, and turned it with the SD card … Continue reading →
OH6: Trial court’s failure to explain RS under Rodriguez required remand
The trial court in denying the motion to suppress didn’t adequately explain the Rodriguez moment and whether there was reasonable suspicion. Remanded. State v. Jeter, 2024-Ohio-1442, 2024 Ohio App. LEXIS 1356 (6th Dist. Apr. 12, 2024). On the totality of … Continue reading →
CA8: 5-day delay between seizure of a cell phone and the SW to get into it was reasonable
A five-day delay between seizure of a cell phone and the search warrant to get into it was reasonable. United States v. Thomas, 2024 U.S. App. LEXIS 8165 (8th Cir. Apr. 5, 2024). “Considering the factors outlined in Golinveaux, Schnitker’s … Continue reading →
VI: In a pretrial curfew check, third-party custodian can consent to entry and search
Defendant was on pretrial release with a curfew at the home of his third-party custodian. Officers came for a compliance check and knocked at the door. Getting no answer, they went to the back door. They were lawfully on his … Continue reading →
CA8: Motel operator could consent to search for drugs he found cleaning room, and defendant didn’t even know
Defendant rented a hotel room for two nights. He was warned no illegal conduct. After the first night, the motel operator entered to clean the room. The mattress had been moved, so the operator lifted it to move it back … Continue reading →
CA7: False arrest claims before trial are 4A claims; due process after trial
“Claims for false arrest prior to trial are appropriately considered under the Fourth Amendment, not the Fourteenth Amendment. Manuel v. City of Joliet, Illinois, 580 U.S. 357, 367 (2017) (‘If the complaint is that a form of legal process resulted … Continue reading →
CA11: There was PC to take def’s picture in public; seizure question moot
Regardless of whether defendant was seized, there was probable case to encounter him and take his picture in a public place. United States v. Daniels, 2024 U.S. App. LEXIS 7522 (11th Cir. Mar. 29, 2024). Defendant wasn’t seized when he … Continue reading →
TX: Refusal to consent can’t be part of RS
“The court of appeals should not have considered Appellant’s lawful refusal to consent to the search of his truck when determining if the facts of this case gave rise to reasonable suspicion. Instead, the court of appeals should have considered … Continue reading →
E.D.N.Y.: Public employee labor union contract can consent to drug testing of members
“Despite Fourth Amendment implications, ‘a public employee union acting as the exclusive bargaining agent may consent to drug testing on behalf of the employees it represents.’” (quoting Bolden v. SEPTA, 953 F.2d 807, 828 (3d Cir. 1991). Dolginko v. Long … Continue reading →
MO: Detox civil detention justified inventory search of the person
Detox civil detention justified inventory search of the person the same as jailing an alleged offender. State v. Williams, 2024 Mo. App. LEXIS 131 (Mar. 5, 2024). Some of the information in the affidavit didn’t provide a time frame, but … Continue reading →
Scientific American: ‘Consent’ Searches Don’t Stop Drug Trafficking. They Threaten Privacy Rights
Scientific American: ‘Consent’ Searches Don’t Stop Drug Trafficking. They Threaten Privacy Rights by Derek Epp, Hannah L. Walker, Megan Dias & Marcel Roman (“U.S. police embraced frequent “consent” searches of motorists during the ‘tough on crime’ era. These searches, meant … Continue reading →
Defendant consented to search of his car, not knowing the battery was of interest to the police as a place to hide contraband.
When defendant consented to search of his car, he didn’t know that the battery was of interest to the police as a place to hide contraband. As far as he knew, the battery was inside the car so the consent … Continue reading →
S.D.N.Y.: 4A doesn’t apply to seizure of superyacht in Fiji belonging to a non-US citizen
The Fourth Amendment does not apply extraterritorially to a boat seizure for forfeiture in Fiji belonging to a noncitizen. “It is hereby ORDERED that Claimants’ request for expedited discovery is DENIED. Claimants’ request is denied because the basis of their … Continue reading →
OH4: Officer saying he had PC to search when he didn’t made search without consent
“We find that the detective did have reasonable suspicion to make an investigative stop of Stephenson’s vehicle based on the information provided by an informant. However, the detective lacked probable cause to search the vehicle and the purported ‘consent’ that … Continue reading →
OH10: Taking GSR at scene of shooting was with exigent circumstances
Taking GSR samples from defendant at the scene of a potential murder was with exigent circumstances and wasn’t intrusive. “As in Jarrell, the GSR evidence was highly evanescent evidence that was susceptible to destruction from simple activities like wiping one’s … Continue reading →
E.D.N.C.: The third-party doctrine is information about records, not content
Third party information: “This type of information is unprotected by the Fourth Amendment. See Smith, 442 U.S. at 742. Courts routinely recognize that under Smith’s logic as applied to these statutes, this type of information constitutes communication records, not content.” … Continue reading →
D.Idaho: What’s “full and fair opportunity” under Stone?
“Powell does not specify a particular test for determining whether a state provided a defendant with an opportunity for full and fair litigation of a Fourth Amendment claim. To aid in determination of this question, federal district courts in the … Continue reading →
D.Del.: Claiming a state administrative subpoena creates a “Fourth Amendment defense” is frivolous; removal denied, attorneys fees imposed
The Delaware DOJ sought records in an administrative proceeding against the defendant, and the defendant claimed the subpoena violated the Fourth Amendment and attempted to remove the whole case to federal court because that was a federal defense. This is … Continue reading →
MS: No REP against CI recording you in your own house during drug deal
911 was called about a man passed out in his pickup truck in his driveway at the street.There was no reasonable expectation of privacy against letting in a wired CI under Hoffa. Douglas v. State, 2024 Miss. LEXIS 24 (Jan. … Continue reading →
GA: Question in inventory was whether it was reasonable, not whether it was necessary
The question in inventory was whether it was reasonable, not whether it was necessary. Defense counsel wasn’t ineffective for not moving to suppress. McAnnally v. State, 2024 Ga. App. LEXIS 19 (Jan. 18, 2024). The prolonged retention of defendant’s cell … Continue reading →