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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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Federal Law Enforcement Training Center Resources
FBI Domestic Investigations and Operations Guide (2008) (pdf)
DEA Agents Manual (2002) (download)
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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
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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: Qualified immunity
W.D.Mo.: ER’s security staff conducts private searches of GSW victims
Defendant showed at a hospital ER with a gunshot wound. Hospital policy was for its security staff to search GSW patients’ clothing for staff safety. This was a private search, and it produced ammunition from a convicted felon. United States … Continue reading
CA11: 24 officers raiding wrong house subject to QI
24 officers raiding the wrong house [somehow] are entitled to qualified immunity. Norris v. Hicks, 2021 U.S. App. LEXIS 13272 (11th Cir. May 5, 2021):
NYT: Split-Second Decisions: How a Supreme Court Case Shaped Modern Policing
NYT: Split-Second Decisions: How a Supreme Court Case Shaped Modern Policing by David D. Kirkpatrick (“Officers using deadly force rely on a legal doctrine set forth decades ago. Now, the movement launched by the death of George Floyd is trying … Continue reading
CA9: Saying you just found the backpack you’re carrying in a dumpster shows no REP
“First, the court did not clearly err in finding that Gage had abandoned any reasonable expectation of privacy in the backpack by telling Officer Robinson that the group had just retrieved the backpack from a garbage dump and that he … Continue reading
CA9: Inaccuracies in SW’s place to be searched didn’t misdirect officers; QI applies
The inaccuracies in the search warrant the officer sought weren’t enough to misidentify the place to be searched. Therefore, defendants didn’t violate clearly established law. Hill v. County of Benewah, 2021 U.S. App. LEXIS 10781 (9th Cir. Apr. 15, 2021).* … Continue reading
N.D.Ga.: Prosecutor immune for false presentation of evidence in SW affidavit
A prosecutor’s false presentation of evidence for a search warrant is entitled to immunity. Here, plaintiff doesn’t even say what the false evidence is. Captain Jack’s Crab Shack, Inc. v. Cooke, 2021 U.S. Dist. LEXIS 69196 (N.D. Ga. Mar. 8, … Continue reading
CA7: Shooting ptf after firing a gun in the air around a crowd of people still entitled to qualified immunity
The defendant officer’s use of deadly force against the armed plaintiff who fired a gun into the air around many people apparently to attempt to break up a scuffle led to him getting shot multiple times in seconds. Someone else … Continue reading
CA11: Tasing someone ignoring three commands to get on the ground was reasonable for QI purposes
“Measuring the facts of this case against the above factors, Deputy Ward acted reasonably when he used force against Duncan after she did not obey his orders to get on the ground. Even accepting as true that Duncan did not … Continue reading
CA5: A jury will have to decide reasonableness of excessive force used against a suicidal man
A jury needs to decide whether this officer’s use of deadly force on a suicidal suspect was reasonable. it was “clearly established — and possibly even obvious — that an officer violates the Fourth Amendment if he shoots an unarmed, … Continue reading
D.D.C.: Requirement of a medical exam to determine if a firefighter can return to duty isn’t 4A violation
“McCrea claims that Defendants violated her Fourth Amendment right to privacy by ordering her to undergo psychological assessments that went beyond the essential functions of her job as a firefighter. … The Fourth Amendment protects an individual’s ‘reasonable expectation of … Continue reading
CA2: Slamming head of nonresisting arrestee excessive
The district court erred in entering summary judgment for officers in an excessive force claim. It was clearly established that slamming an unresisting detainee’s head into a car doorframe was excessive. Ketcham v. City of Mt. Vernon, 2021 U.S. App. … Continue reading
E.D.Wis.: Video of aftermath of execution of SW more prejudicial than relevant under Rule 403
In a civil case over a shooting of dogs during execution of a search warrant, the court rejects that the warrant was unreasonable but finds the bodycam of shooting the dogs and the aftermath irrelevant and inflammatory under Rule 403. … Continue reading
D.Minn.: Information from named security guard passing on detailed hearsay from unidentified source in 911 call was reliable
The 911 caller here was an identified security guard who passed on detailed information he’d received from a source. The detail made it reliable enough for reasonable suspicion. United States v. Valenzuela, 2021 U.S. Dist. LEXIS 50262 (D. Minn. Feb. … Continue reading
CA11: Tasing grand mal seizure sufferer held down by four men was excessive on its face; no QI
The officer’s repeated Tasings of the teenager who was suffering a grand mal seizure amounted to excessive force. The district court properly denied qualified immunity, because the constitutional violation was clearly established based on both materially similar case law and … Continue reading
CA5: Police accidentally shooting a hostage isn’t an intentional seizure
“Here, the only plausible reading of the allegations is that Doe accidentally shot Ulises while trying to help him by ending the hostage situation. Such accidental conduct does not result in a Fourth Amendment seizure. See Brower, 489 U.S. at … Continue reading
CA9: Violent take down of traffic detainee not resisting could be found excessive; no QI
Qualified immunity is denied officers for excessive force in a violent take down on a passively resisting plaintiff in a traffic stop without there being any exigency justifying it. “Viewing the facts, as we must, in the light most favorable … Continue reading
CA2: A mere hunch there was an arrest warrant made stop unreasonable
It was clearly established law in January 2015 that an officer’s unconfirmed hunch that an arrest warrant might possibly exist, coupled with nothing more than the officer’s recognition of a suspect from prior arrests, did not constitute reasonable suspicion justifying … Continue reading
CA1: Breaking the excessive force claim into parts for analysis results in a denial of QI
The officers do not get qualified immunity in this 1983 case. “Certainly, this was not an ‘obvious case’ where the officers so blatantly violated the Fourth Amendment that recourse to factually analogous case law is unnecessary. Wesby, 138 S. Ct. … Continue reading
S.D.N.Y.: HomeAway and AirBnb prevailing parties in their data collection suit v. NYC
HomeAway.com and AirBnb.com were prevailing parties in their Fourth Amendment claims against the City of New York for sweeping data production, and they are awarded $595,000 in attorneys fees. HomeAway.com, Inc. v. City of New York, 2021 U.S. Dist. LEXIS … Continue reading
CA8: Presenting def with DNA SW after he lawyers up wasn’t attempt to reopen interrogation
Presenting defendant with a search warrant for DNA swabs during an interrogation after he lawyered up was a statement of fact and not an attempt to get him to talk again. Thus, Miranda not violated. United States v. Zephier, 2021 … Continue reading
