- N.D.Ga.: Failure to specify how the R&R was deficient on PC finding was waiver
- Ga.Bar J.: Who Should Guard the Attorney-Client Privilege When Documents are Seized by Law Enforcement,
- OR: For particularity in electronic devices, specify what will be found
- W.D.N.C.: Traffic stop for expired tags went right to criminal history and was overlong
- ID rejects “reasonable mistake of law” and Heien under state constitution; state’s exclusionary rule is broader
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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
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"If it was easy, everybody would be doing it. It isn't, and they don't."
“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!”"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: Warrant requirement
CA7: Target of SW doesn’t have to be suspected of crime
A target of a search warrant does not have to be suspected of a crime. A holder of “mere evidence” can be subjected to a search warrant. United States v. Roland, 2023 U.S. App. LEXIS 4987 (7th Cir. Mar. 1, … Continue reading
N.D.Ind.: Typo in SW home address was cured by picture of house
A typo in defendant’s home address was not prejudicial where there was a picture of the house included in the warrant. Thus, no ineffective assistance of counsel for not challenging it. Kassay v. United States, 2022 U.S. Dist. LEXIS 116669 … Continue reading
OH4: Allegation of delay in SW execution until def was present didn’t make it unreasonable
The officers’ delay in executing the search warrant for defendant’s property until he was there so he could be searched, too, was not unreasonable. The warrant had not gone stale by the time it was executed. State v. Alexander, 2022-Ohio-1812, … Continue reading
N.D.Ind.: Typo in title of SW of no consequence at all
The fact the search warrant had a typo and was called “search warrant affidavit” is of no moment. It was obviously the warrant. The affidavit also showed plenty of probable cause. Boddie v. Morales, 2022 U.S. Dist. LEXIS 29509 (N.D.Ind. … Continue reading
CA7: “Police officers owe judges candor when seeking search warrants.”
“Police officers owe judges candor when seeking search warrants.” This officer’s wrong guess as to the place to be searched for a search warrant exposed the officer to liability. Taylor v. Hughes, 2022 U.S. App. LEXIS 4276 (7th Cir. Feb. … Continue reading
OH: Lack of judge’s signature on actual arrest warrant not fatal where judge signed off on complaint; GFE also applies
The absence of the judge’s signature on an arrest warrant was not fatal where the affidavit for probable cause sworn by the witness was attested to by the judge and attached. The good faith exception also applies. (Finally, the state’s … Continue reading
N.D.Ga.: Failure to record videoconference SW application under state law not 4A violation
Georgia has allowed video conferencing search warrant application for years. The statute requires a recording, but the federal courts have never held that a failure to record violates the Fourth Amendment when a state search warrant ends up in federal … Continue reading
NY4: Minor typos in SW application don’t void the warrant
“We reject defendant’s contention that the search warrant for his cell phones was issued without probable cause. According ‘great deference to the issuing [Justice]’ …, we conclude that Supreme Court properly determined that there was sufficient information in the warrant … Continue reading
OR: When defense raises lack of oath or affirmation for SW, burden is on state to prove SW was properly issued
When the defense challenges the validity of the warrant for lack of oath or affirmation, that’s tantamount to a warrantless search allegation, so the court concludes the burden should be on the state to go forward. State v. Perrodin, 315 … Continue reading
D.Vt.: Affidavit for arrest warrant shows PC for some crime; alleged technical problems don’t matter
There was probable cause for defendant’s arrest for second degree murder. The affidavit need only show probable cause for some crime, and technical deficiencies don’t matter. United States v. Felix, 2021 U.S. Dist. LEXIS 188274 (D.Vt. Sept. 30, 2021):
SC authorizes video or phone oath and presentation of SW affidavits
Remote communication technology has been used for court proceedings under Covid. It is expressly authorized for many other proceedings, including issuance of search warrants. The swearing of the affiant can be remote. Use of Remote Communications Technology, 2021 S.C. LEXIS … Continue reading
NC: Complete failure of SW affidavit to show or infer time voided it
The search warrant’s affidavit complete failure to specify the time couldn’t even be inferred from the totality, so the search warrant failed to show probable cause for issuance. State v. Logan, 2021-NCCOA-311, 2021 N.C. App. LEXIS 327 (July 6, 2021). … Continue reading
W.D.Ark.: Govt motion for voice exemplar granted
A blast from the past not seen in the case law in years: Defendant has no reasonable expectation of privacy in not providing a voice examplar on the government’s motion. United States v. McClain, 2021 U.S. Dist. LEXIS 124835 (W.D. … Continue reading
D.Vt.: CP SW doesn’t need a temporal limitation
A search warrant for child pornography doesn’t really need a temporal limitation, considering the nature of what’s sought. United States v. Johnson, 2021 U.S. Dist. LEXIS 122802 (D. Vt. June 29, 2021):
D.Conn.: Unreasonable delay in getting SW for cell phone defeats GFE
Where the officers impermissibly delayed obtaining a search warrant for defendant’s cell phone, the good faith exception does not apply. The initial seizure of the phone was valid because it was left at a crime scene. United States v. Tisdol, … Continue reading
MD: Tracking “court order” didn’t need to be called a “warrant” to be one
A “court order” for tracking defendant’s vehicle satisfied the warrant requirement, and it didn’t have to be called a search warrant. It was issued with probable cause, and the good faith exception applied. Whittington v. State, 2021 Md. LEXIS 255 … Continue reading
CA6: Detention with handcuffing on RS permitted putting def in police car
There was reasonable suspicion for defendant’s detention, including putting him in a police car while they sorted it out. That was not yet an arrest. United States v. Rogers, 2021 U.S. App. LEXIS 16160 (6th Cir. May 27, 2021). The … Continue reading