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ABA Journal Web 100, Best Law Blogs (2017); ABA Journal Blawg 100 (2015-16)
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© 2003-21,
online since Feb. 24, 2003
WebPage Visits: real non-robot hits since 2010; approx. about 30,000 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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Briefs online (but no amicus briefs)
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General (many free):
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www.fd.org
Federal Law Enforcement Training Center Resources
FBI Domestic Investigations and Operations Guide (2008) (pdf)
DEA Agents Manual (2002) (download)
DOJ Computer Search Manual (2009) (pdf)
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
Privacy Foundation
Electronic Frontier Foundation
NACDL’s Domestic Drone Information Center
Electronic Privacy Information Center
Criminal Appeal (post-conviction) (9th Cir.)
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"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
CA9: Going directly into pockets exceeded frisk power
Where the officer stood defendant up and turned him around, defendant was seized. Going directly into defendant’s pockets to search exceeded the power of a frisk. United States v. Brown, 2021 U.S. App. LEXIS 14015 (9th Cir. May 12, 2021). … Continue reading →
IL: ER blood draw was private search, and results were obtainable by process
Defendant’s ER blood draw after he was admitted for an accident was by a private actor, and the results are obtainable by the state and admissible. People v. Mueller, 2021 IL App (2d) 190868, 2021 Ill. App. LEXIS 227 (May … Continue reading →
E.D.N.C.: Nexus can be established by inference
Nexus may be established by inference and not direct evidence. United States v. White, 2021 U.S. Dist. LEXIS 85454 (E.D. N.C. Mar. 17, 2021). Plaintiff was arrested and charged with two misdemeanors. Probable cause for one mooted consideration of the … Continue reading →
PA: Asking for consent while DL and registration in hand unreasonably extended stop
Defendant’s alleged excessive nervousness during a traffic stop caused the officer to have him get out of the car after the warrant check came back clean. He had defendant’s DL and registration in hand when he asked for consent, and … Continue reading →
CA10: Def’s father’s consent to enter house was voluntary
Defendant’s father consented to officers’ entry into their house, so defendant’s Fourth Amendment rights were not violated. United States v. Guillen, 2021 U.S. App. LEXIS 12468 (10th Cir. Apr. 27, 2021). “While Artola putting his arm into Wheeler’s car may … Continue reading →
AZ: Failure to include SW and affidavit in record for appeal is waiver
Defendant waived the Fourth Amendment claim about the search of his blood by not including the search warrant and its application in the appellate record. It is thus presumed to support the trial court’s decision. State v. Gomez, 2021 Ariz. … Continue reading →
OH4: Criminal investigation’s SW production was admissible in child dependency proceeding
A search warrant produced drug evidence admissible in a dependency and neglect proceeding, and that supported the finding. In re J.M., 2021-Ohio-1415, 2021 Ohio App. LEXIS 1376 (4th Dist. Apr. 19, 2021). Defendant’s son “posted a video on the internet” … Continue reading →
D.Idaho: Def’s available suppression remedy supplants Rule 41(g) motion seeking to quash SW
Defendant filed a Rule 41(g) motion for return of property that also sought to quash a search warrant. He has the remedy in his criminal case. Purbeck v. Wilkinson, 2021 U.S. Dist. LEXIS 76412 (D. Idaho Apr. 21, 2021). The … Continue reading →
C.D.Cal.: Delayed first appearance 4A claim should be brought by habeas not § 1983
Plaintiff’s claim he did not receive his first appearance within 48 hours should have been brought by habeas under 28 U.S.C. § 2254 not a § 1983 action. Young v. Levert, 2021 U.S. Dist. LEXIS 76021 (C.D. Cal. Apr. 20, … Continue reading →
N.D.Okla.: SW for Native American lands issued by state court judge that may be invalid under McGirt v. Oklahoma is saved by GFE
A state search warrant for Native American lands that later may be invalid because it was not issued by a tribal or federal court under McGirt v. Oklahoma is saved by the good faith exception. United States v. Hamett, 2021 … Continue reading →
W.D.Tex.Bankr.: 4A does not extend to civil discovery requests
Posts to a “secret” Facebook group weren’t protected by any reasonable privacy interest in civil litigation. Social media isn’t protected by any privacy interest. “Defendant does not cite, and the Court could not find, any case that extends the Fourth … Continue reading →
N.D.Okla.: Not readily finding def in his motel room justified its protective sweep
The protective sweep of defendant’s motel room was reasonable, and it was also justified by a search waiver. There was a woman in the room who was not the defendant they were looking for. United States v. Banegas, 2021 U.S. … Continue reading →
D.C.: Body cam didn’t support trial court finding of consent to feel a bag; it essentially happened as one move as officer asked for consent
The record doesn’t support the trial court’s finding of consent to a squeeze of a bag that revealed a gun. The officer was reaching for the bag asking for consent. “The government played footage from Denton’s body worn camera (‘BWC’), … Continue reading →
S.D.N.Y.: Defense counsel giving passcode to def’s cell phone at AUSA’s request wasn’t consent; merely avoiding delay of decryption
An AUSA’s request of defense counsel for defendant’s cell phone’s passcode was not a request for consent. It was merely to avoid the delay of decryption. United States v. Mangini, 2021 U.S. Dist. LEXIS 66764 (S.D. N.Y. Apr. 6, 2021):
WI: Consent to search a computer was limited to def’s son’s user files; forensically searching recycle bin exceeded the scope of consent
Defendant granted consent to search only his son’s files on his computer. The forensic analyst searched the recycle bin, too, and that exceeded the scope of consent. Shared files were not within the scope of consent. State v. Jereczek, 2021 … Continue reading →
D.P.R.: When def asks for a SW and refuses consent, officers can’t just ask others
Defendant repeatedly asked for a search warrant when the officers sought consent, so there was no consent. He was present and objecting, and they couldn’t look to another to provide consent. “Considering the agents’ repeated representations, the Court cannot expect … Continue reading →
ND: While a shrug isn’t consent, mumbling, nodding, and lifting one’s hands can be
While a shrug isn’t consent, mumbling, nodding, and lifting one’s hands can be consent on the totality. The consent was a permissible extension of the encounter. State v. Stands, 2021 ND 46, 2021 N.D. LEXIS 43 (Mar. 24, 2021):
ID: Police knowledge def was attempting to destroy evidence of a murder including burning the body and other evidence was exigency for entry
Police knowledge defendant was destroying evidence of a violent crime on his premises was exigency for a warrantless entry. “Lopez reported to the police that he had seen Davis’s body.” Police knew: “Smith was actively attempting to destroy evidence by … Continue reading →
CA3: No REP in non-legal jail email
There is no reasonable expectation of privacy in inmate non-legal jail email. Robinson v. Pennsylvania Dep’t of Corr., 2021 U.S. App. LEXIS 7900 (3d Cir. Mar. 18, 2021). Defendant consented to come in to talk about the investigation and to … Continue reading →
IL: Def’s failure to answer request for consent is not implied consent
When asked for consent, defendant didn’t answer. The officer’s testimony that “he not tell me no” was not consent, which had to proved by the state. People v. Banta, 2021 IL App (4th) 180761, 2021 Ill. App. LEXIS 112 (Mar. … Continue reading →
