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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
WebPage Visits: real non-robot hits since 2010; approx. about 35,000 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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General (many free):
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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
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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: Mandated GPS tracking of e-scooters not 4A violation
The City of Los Angeles e-scooter ordinance requires the scooters to have GPS and provide real time tracking information. This is classic third-party data, and there is no reasonable expectation of privacy of scooter users in that information. Sanchez v. … Continue reading →
E.D.Mich.: Def had standing in his brother’s garage where only they had keys and it was used for business purposes
The warrantless search of defendant’s brother’s garage where both had keys and defendant kept things from their construction business was unreasonable. Defendant had standing because it was used for business purposes, and he did not have to spend the night … Continue reading →
NJ: Visitor had standing in his own stuff, even if not the place
A visitor had standing to contest the search of his own stuff while he was there. (And the alleged consent of his mother was suspect.) State v. Marcellus, 2022 N.J. Super. LEXIS 67 (May 18, 2022). Defendant was stopped for … Continue reading →
N.D.Ill.: Alleged violation of police dept policy on consent didn’t affect 4A claim here
The defense claim the officer somehow violated department policy in obtaining consent doesn’t bear on the constitutional question at all. There was at least reasonable suspicion for his stop and the encounter. United States v. Lopez-Garcia, 2022 U.S. Dist. LEXIS … Continue reading →
CA5: GFE applies to showing of nexus
The good faith exception applies to the warrant affidavit’s showing of nexus. The showing wasn’t great, but it was sufficient to not be bare bones. The officer adequately connected defendant to the premises. United States v. Jackson, 2022 U.S. App. … Continue reading →
W.D.Va.: Knock-and-announce isn’t required when no one home
Defense counsel wasn’t ineffective for not challenging execution of the search warrant without knocking and announcing. First, the homeowner wasn’t there; he was in the hospital. Second, Hudson doesn’t permit that challenge under the exclusionary rule. Brown v. Clarke, 2022 … Continue reading →
TN: Owner of premises could consent to enter room of visitor
Defendant was a suspect in a murder, and police were admitted to the house where he stayed by consent of the owner. He wouldn’t come out of his bedroom, so they went in. The owner had complete control over the … Continue reading →
E.D.Wis.: Admitted investigatory motive for inventory made it unreasonable
Officers had an admitted investigatory motive for stopping and searching defendant’s car. They found a reason to impound it and conduct an inventory, and that was unreasonable here. United States v. Clayton, 2022 U.S. Dist. LEXIS 80076 (E.D.Wis. May 3, … Continue reading →
CA2: Shot fired through wall justified entry into that locked room
“At the time they entered Laurent’s locked room, the officers knew that only minutes before a shot had been fired from the locked room into the neighboring room. The district court did not err, much less clearly err, in finding … Continue reading →
VI: Procedural errors in telephonic SW not suppressible without recklessness or bad faith
The procedural deficiencies in obtaining the telephonic warrants did not render them invalid. There was no showing of bad faith by the officers. People v. Glasford, 2022 VI SUPER 42, 2022 V.I. LEXIS 40 (Apr. 19, 2022). A person detained … Continue reading →
S.D.Miss.: 4A isn’t a basis to challenge federal marijuana criminalization
The Fourth Amendment provides no basis to claim that federal prosecution of marijuana cases violates the Constitution. United States v. Jones, 2022 U.S. Dist. LEXIS 73000 (S.D.Miss. Apr. 21, 2022).* The officer here had probable cause to arrest plaintiff for … Continue reading →
N.D.Ill.: Going to drug deal from house and then going back is nexus to the house
Defendant left his house, went to a drug deal, and returned. This is not the officer’s mere reliance on what drug dealers normally do or he would expect to find. United States v. McCreary, 2022 U.S. Dist. LEXIS 69838 (N.D.Ill. … Continue reading →
D.N.J.: Whether this state court judge could legally issue a telephonic warrant isn’t a 4A violation
Whether a lower court judge could issue a telephonic search warrant under state law doesn’t matter in federal court or the Fourth Amendment. “To begin with, the defendant raises at best a state-law technicality that is not of federal constitutional … Continue reading →
N.D.Ga.: No standing from hiding a gun and clip in the breakfast area of a hotel
Defendant has no standing to contest police finding his gun and clip he hid in separate cabinets in the breakfast area of his hotel. United States v. Blakely, 2022 U.S. Dist. LEXIS 59245 (N.D.Ga. Feb. 28, 2022),* adopted, 2022 U.S. … Continue reading →
OR: Asking juror question about refusal of consent was error, but here harmless
Oregon permits juror questions, and here one asked whether defendant willingly provided a DNA sample. Asking it on the record all amounted to error, but under plain error review, with other evidence in the case, it’s not reversible. State v. … Continue reading →
Bloomberg Law: Police Search of Rape Victims’ DNA Tests Meaning of Consent
Bloomberg Law: Police Search of Rape Victims’ DNA Tests Meaning of Consent by Lydia Wheeler:
UT: Searching a sleeping driver unreasonable; not community caretaking function
The state’s justification of rousting a person sleeping in a car was a seizure and not justified by the community caretaking function. The state bore the burden, and it failed. This was treated by the officers as a criminal investigation … Continue reading →
W.D.Mich.: With no evidence to rebut the prosecution evidence def consented to search of his person, the govt met its burden of proof on consent
“In this case, Defendant expressly indicated that he does not dispute the validity of his consent, but solely the scope of that consent. Detective Fox testified that he asked for Defendant’s general consent to search his person and that Defendant … Continue reading →
SD: Refusal to submit to DUI blood draw, itself an offense, could be instructed upon without violating 4A
Where refusal to submit to a DUI blood test is the offense and statute makes refusal to submit admissible, it did not violate the Fourth Amendment to instruct the jury on refusal. State v. Nelson, 2022 SD 12, 2022 S.D. … Continue reading →
LA5: Motorist assist led to plain smell and valid search
Police were called for a motorist assist to unlock a car. Once opened, the car smelled of marijuana, and that created probable cause. The police were invited to the curtilage. State v. Keller, 2022 La. App. LEXIS 247 (La. App. … Continue reading →
