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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:
Supreme Court:
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Briefs online (but no amicus briefs)
Oyez Project (NWU)
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General (many free):
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Lexis.com $
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F.R.Crim.P. 41
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: Dog sniff
D.Colo.: Federal law criminalizing marijuana makes dog sniff in recreational use state reasonable
Even though Colorado has decriminalized personal use of marijuana, a dog sniff is still reasonable under federal law because possession of marijuana is still a violation of federal law because it’s unlawful for “any purpose.” United States v. Spikes, 2021 … Continue reading
KS: 24 minute wait for drug dog with RS wasn’t unreasonable
A wait of 24 minutes for the drug dog to arrive after reasonable suspicion developed was reasonable and not excessive. State v. Arrizabalaga, 2021 Kan. LEXIS 50 (Apr. 30, 2021). The Border Patrol request to local police to stop defendant … Continue reading
OH5: Dog was called two minutes into stop of RV and it didn’t prolong the stop
Defendant’s RV was stopped for crossing the center line, and a drug dog was called within two minutes, arriving shortly thereafter. Waiting for and using the dog did not delay the stop, and the Fourth Amendment was not violated. State … Continue reading
OH10: Citizen informant’s complaint of def flashing gun from car justifies frisk of person and car
A citizen informant’s complaint defendant flashed a gun was justification for both a patdown and a protective weapons search of his car. State v. Shalash, 2021-Ohio-1034, 2021 Ohio App. LEXIS 1043 (10th Dist. Mar. 30, 2021). Calling for a drug … Continue reading
KY: State failed to call witnesses to show RS for extending stop for drug dog
The state failed to prove its reasonable suspicion for extending the stop. The officer alone detaining at the scene for the drug dog didn’t have the evidence. Giles v. Commonwealth, 2021 Ky. App. LEXIS 45 (Mar. 26, 2021):
W.D.La.: Motion to suppress SW has to plead and proffer that GFE doesn’t apply
Defendant had a duty to address the good faith exception in his motion and amended motion to suppress a search under a warrant, but he did not. United States v. Lyons, 2021 U.S. Dist. LEXIS 48780 (W.D. La. Feb. 17, … Continue reading
CA10: A drug dog “alert, as opposed to a final indication, is sufficient to establish probable cause.”
The district court credited the dog handler that the dog alerted. “To the extent that Goldberg brings a legal challenge, this court has held that an alert, as opposed to a final indication, is sufficient to establish probable cause.” United … Continue reading
CA10: Officer’s questions after completion of stop extended it by consent
The traffic stop evolved into reasonable suspicion of drug trafficking and then a drug dog could be used on the vehicle. After completing the stop, “As Mercado-Gracia walked back to his vehicle, however, Officer Wood invoked ‘the old highway patrol … Continue reading
D.P.R.: Getting out of car and running away from it on seeing the police is abandonment
Defendant didn’t file a declaration under penalty of perjury contesting the facts alleged in his criminal complaint. He also fails to show even a subjective reasonable expectation of privacy in the place searched to give him standing. He abandoned his … Continue reading
FL1: Screen shot of of meth on a scale on driver’s cell phone permitted dog sniff during writing of traffic ticket
Defendant was stopped for a traffic offense, and he was unusually nervous. Sitting on his left leg was a cell phone with the screen on showing a picture of meth on a scale. That justified a dog sniff while a … Continue reading
OH5: Def’s inordinate delay in finding car insurance card enabled reasonable dog sniff
The stop was delayed by defendant being unable to produce his proof of insurance, so the officer did not extend the stop to run a dog around the car during the wait. State v. Newman, 2021-Ohio-119, 2021 Ohio App. LEXIS … Continue reading
CA9: The fact CBP had RS doesn’t mean it’s required for a border dog sniff
“The fact that Customs and Border Patrol (CBP) officers had reasonable suspicion cannot serve to heighten the standard attached to the border search.” The use of a drug dog at the border doesn’t require reasonable suspicion. United States v. Meraz-Campos, … Continue reading
D.Utah: Govt had burden on proving RS to continue stop and failed to put on justification; suppressed
The government carried the burden on the basis for the stop but not why it was continued, and the record tells the court nothing about the first 65 minutes of delay. “[T]he court concludes that the dog’s entry into the … Continue reading
DE: Actual presence of accused not required for suppression hearing and video appearance constitutional
A virtual suppression hearing that was a mixed question of law and fact didn’t require the actual presence of the accused under the Sixth Amendment’s confrontation clause, following United States v. Rosenschein, 2020 U.S. Dist. LEXIS 129889 (D.N.M. July 23, … Continue reading
W.D.Pa.: Opening car door and drug dog jumping in wasn’t encouraging the dog
During a dog sniff, the officer opened the car door, and the dog jumped in. The officer did not encourage the dog to enter [merely by opening the door], so this was not a search. The court notes that the … Continue reading
FL4: Dog sniff of passenger in car stopped with RS was reasonable
“We address an issue of first impression: the propriety of using a drug dog to sniff the passenger of a vehicle during a traffic stop based on a reasonable and articulable suspicion the passenger possesses drugs, where the sniff itself … Continue reading
OH12: Drug dog’s alert to residual odor of drugs is not a lack of PC
A drug dog’s alert to the residual odor of drugs isn’t a lack of probable cause. “Accordingly, the fact that Mox [the drug dog] could have alerted to a residual odor of drugs does not mean that there was not … Continue reading
KY: Traffic stop was unreasonably delayed for drug dog
The officers delayed the stop to get the drug dog to the scene. The court of appeals erred, however, in not determining reasonable suspicion. Commonwealth v. Mitchell, 2020 Ky. LEXIS 394 (Oct. 29, 2020):
TX5: HIPAA doesn’t create REP in blood toxicology for medical treatment later used in DUI
HIPAA doesn’t create a reasonable expectation of privacy in one’s blood sample obtained for medical treatment. HIPAA recognizes criminal process to obtain it. Consuelo v. State, 2020 Tex. App. LEXIS 8460 (Tex. App. – Dallas Oct. 27, 2020). Any lack … Continue reading
