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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© 2003-23,
online since Feb. 24, 2003 Approx. 350,000 visits (non-robot) since 2012 Approx. 45,000 posts since 2003 (25,700+ on WordPress as of 12/31/22)~~~~~~~~~~~~~~~~~~~~~~~~~~
Fourth Amendment cases,
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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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Section 1983 Blog"If it was easy, everybody would be doing it. It isn't, and they don't."
—Me“Life is not a matter of holding good cards, but of playing a poor hand well.”
–Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)“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: Qualified immunity
DC: Search of probationer’s GPS monitor didn’t require a SW
Defendant was on GPS electronic monitoring while on probation. The search of his EM device to prove he was involved in a robbery was not unreasonable. Moreover, even if the probation department’s regulations were somehow violated, the exclusionary rule should … Continue reading
OH8: Extraterritorial stop by LEO doesn’t violate 4A, and exclusionary rule doesn’t apply to statutory violations
An extraterritorial stop by an officer does not violate the Fourth Amendment. The exclusionary rule doesn’t apply to statutory violations, here especially because of public safety concerns. City of Fairview Park v. Bowman, 2023-Ohio-4210, 2023 Ohio App. LEXIS 4047 (8th … Continue reading
S.D.Fla.: Scrolling through electronic devices at the border is reasonable in CA11
Merely scrolling through an electronic device at the border is a reasonable border search. United States v. Vrdoljak, 2023 U.S. Dist. LEXIS 208332 (S.D. Fla. Nov. 20, 2023). The officer was incidentally following defendant, and he observed her driving within … Continue reading
CA11: The bodycam video showed the altercation with ptf and hospital security was reasonable
The bodycam video of plaintiff’s altercation with two hospital security guards showed they were entitled to qualified immunity. Scott v. Harris. Bouvier v. City of Covington, 2023 U.S. App. LEXIS 30822 (11th Cir. Nov. 20, 2023).* In excessive force cases, … Continue reading
CA6: SW’s minor error in naming place to be searched did not entitle ptf to relief; qualified immunity applies
A minor error in the address of the place to be searched could be overlooked because only the right place was searched. There is still qualified immunity. Neal El v. Valasek, 2023 U.S. App. LEXIS 30000 (6th Cir. Nov. 9, … Continue reading
N.D.Ga.: SW for defendant’s email to show his and others’ state of mind at time of crime was not overbroad
The search warrant for defendant’s email accounts to show where he was when he accessed it, “evidence relating to the planning, execution, furtherance and/or concealment of the crimes under investigation,” and his “and other participants’ state of mind as it … Continue reading
E.D.N.Y.: Police officer’s drug test while on sick leave for work injury was justified by RS
Plaintiff is a Suffolk County police officer on work-related sick leave. He was ordered to take a drug test while off, and the court finds it a search and done on reasonable suspicion. Volpe v. Ryder, 2023 U.S. Dist. LEXIS … Continue reading
NY3: Motion to suppress is an adequate remedy at law, not a writ of prohibition
Defendant sought prohibition to prevent his prosecution because of an illegal search. He has an adequate remedy in a motion to suppress. Denied. Matter of Rodriguez v. Hobbs, 2023 NY Slip Op 05433,2023 N.Y. App. Div. LEXIS 5399 (3d Dept. … Continue reading
CA6: State issuing magistrate’s failure to transcribe supplemental information for PC was not enough to suppress
The affidavit and supplementing testimony provided substantial probable cause for issuance of the warrant. State law requires any testimony supplementing a search warrant affidavit be preserved and transcribed. The state issuing magistrate failed. The officer, however, acted in good faith, … Continue reading
IL: In this forfeiture seizure, the car could not be inventoried; contents were to be returned to the owner
Officers attempted a stop of a vehicle potentially involved in an earlier occurrence. Instead of stopping, the driver fled from the stop in the car. Instead of pursuing, officers had the LPN and went to where it was registered, and … Continue reading
M.D.Pa.: State law jurisdiction of the officers involved isn’t cognizable in a 2254
State law jurisdiction of the officers involved isn’t cognizable in a 2254. McDowell v. Hainesworth, 2023 U.S. Dist. LEXIS 187496 (M.D. Pa. Oct. 18, 2023). Petitioner doesn’t get a CoA to appeal his 2255. He provides no basis for concluding … Continue reading
CA3: SoL for illegal search claims not tolled by incarcerated
Plaintiff inmate’s statute of limitations for an illegal search claim starts when he should be aware of the claim and it is not tolled while he is incarcerated. Poteat v. Lydon, 2023 U.S. App. LEXIS 26961 (3d Cir. Oct. 11, … Continue reading
CA8: Continuation of arrest after the officer learned it was unjustified denied the officer QI
Continuation of plaintiff’s arrest after the officer learned it was unjustified denied the officer qualified immunity. “Even if we concluded Officer Holtan made a reasonable mistake about probable cause when he first tackled Nieters to the ground, Nieters immediately informed … Continue reading
D.Mont.: Def’s interest in his package is a reasonable delivery time, but not an exact time
When a package in transit is detained for investigation, the person named on the package has an interest in a reasonable delivery time, but not an exact time. United States v. Hamlin, 2023 U.S. Dist. LEXIS 180215 (D. Mont. Oct. … Continue reading
CA11: Officer gets QI for ordering passenger to produce ID
The officer in a Florida traffic stop could get the driver out of the vehicle as a matter of course under Mimms. Under Maryland v. Wilson, he could order the passenger out, too. It was not clearly established law that … Continue reading
W.D.La.: Failure to make a timely return of SW papers is not a const’l error
Failure to make a timely return of the warrant to the issuing court is not a constitutional error, and there is no showing of prejudice. United States v. Warren, 2023 U.S. Dist. LEXIS 176014 (W.D. La. Aug. 18, 2023), adopted, … Continue reading
CA9: SW was wholesale overbroad, and QI not properly preserved for appeal
“The Second Search Warrant authorized, among other things, without any limitation as to time, the seizure of a vast array of ‘[f]inancial information’ related to Mr. Moore and ‘associated businesses’ that constitute evidence of a crime and all electronics that … Continue reading
IL: Pills in knotted baggie were “immediately apparent” for plain view
Plain view: “In the case before us, the evidence showed that it was immediately apparent to Officer Yanez, i.e., he had probable cause to believe, that the white pills in the blue-tinted, knotted baggie were illegal narcotics based on his … Continue reading
Two excessive force cases with qualified immunity
“A hypothetically reasonable officer in Brown’s situation would have probable cause to believe that Kohler posed a threat of serious physical harm to himself and to the other officers when he used deadly force. That officer could reasonably conclude that … Continue reading
PA MMA doesn’t permit driving while smoking MMJ
The MMA doesn’t permit driving while smoking MMJ. The smell of burnt MJ coming from defendant’s car was reasonable suspicion to extend the stop. Commonwealth v. Sloan, 2023 PA Super 173 (Sep. 21, 2023).* Plaintiff was in court shortly after … Continue reading
