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- CA5: Deficient privilege log after records search was waiver
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- OH1: A malnourished child isn’t exigency for an infant
- E.D.Pa.: Mandamus doesn’t lie to unseal SW papers
- D.Me.: Looking around house when allegedly “freezing” it was an illegal search
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ABA Journal Web 100, Best Law Blogs (2017); ABA Journal Blawg 100 (2015-16) (discontinued 2018)
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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
www.johnwesleyhall.com -
© 2003-24,
online since Feb. 24, 2003 Approx. 425,000 visits (non-robot) since 2012 Approx. 45,000 posts since 2003 (26,730+ on WordPress as of 12/31/23) -
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Fourth Amendment cases,
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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)
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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!”
---Pepé Le Pew "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."
—Johnson v. United States, 333 U.S. 10, 13-14 (1948)
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Category Archives: Qualified immunity
CA5: Arrest on curtilage was subject to questions of fact
Plaintiff raised questions of fact and law as to the officer’s authority to arrest him in his front yard on the curtilage. Summary judgment denied on the merits, but remanded for further qualified immunity analysis. Sauceda v. City of San … Continue reading
W.D.Okla.: Broad challenges to how ptf was investigated all barred by Heck
“Many of Plaintiff’s alleged violations attack the procedures used to investigate and charge him, the evidence used to convict him, as well as the constitutionality of the first-degree murder statute under which he was convicted. Success on some of these … Continue reading
CA11: Lawyers were arrested for interfering with cell phone search
In a CPS-type case, there was a search warrant for two cell phones with alleged child pornography on them, and officers were going to execute them outside a hearing in the courthouse. Watching on surveillance video, officers saw the phones’ … Continue reading
CA4: Not clearly established that VA DOC can’t drug test a Telecommunications Network Coordinator
Qualified immunity applies to the Virginia DOC directing a drug test of a Telecommunications Network Coordinator. “After VDOC fired Garrett for declining a random drug test, Garrett sued, alleging that VDOC employees violated his Fourth Amendment rights by applying VDOC’s … Continue reading
CA5: No REP in a video recorded by another of def committing a crime
While one can have a reasonable expectation of privacy in something he doesn’t own (as in bailment or contract), here it was a video recorded by another of him possessing firearms. He had no reasonable expectation of privacy in the … Continue reading
M.D.Ala.: CI’s controlled buy doesn’t have to be on video to support PC
There’s no constitutional requirement that the informant’s controlled buy be on video to support probable cause. United States v. Salter, 2023 U.S. Dist. LEXIS 119269 (M.D. Ala. June 7, 2023), adopted, 2023 U.S. Dist. LEXIS 115746 (M.D. Ala. July 6, … Continue reading
E.D.Ark.: Ptf’s Facebook posts shooting guns supported use of flashbang during drug raid
Plaintiff’s Facebook posts of her shooting guns on her property supported the use of flashbang devices when her house was subjected to a drug raid by the SWAT team. Davenport v. City of Little Rock, 2023 U.S. Dist. LEXIS 119102 … Continue reading
DE: Where SW was for clothing worn in shooting, nexus shown to def’s home
Where the search warrant sought clothing worn during a shooting, nexus was shown to where defendant lived. State v. Johnson, 2023 Del. Super. LEXIS 324 (July 7, 2023). There was probable cause for plaintiff’s arrest for harassment of another person. … Continue reading
E.D.Tenn.: SW for a cell phone includes the SD card in it
A search warrant for a cell phone includes the SD card in it. United States v. Glatz, 2023 U.S. Dist. LEXIS 114963 (E.D. Tenn. July 5, 2023). A jury question on probable cause to arrest remained, and that avoids qualified … Continue reading
CA7: Sexual assault under color of law can state 4A claim under § 1983
A police ride-along with a student led to a sexual assault § 1983 suit. “It is well established that sexual assault by a government official acting under color of law violates the Constitution. Cases from different circuits have relied on … Continue reading
RI: Exigency of hot pursuit in a homicide case made pinging cell phone reasonable
Despite Carpenter saying it is limited to historical CSLI, this court concludes there is no meaningful difference between real-time and historical CSLI under Carpenter. Exigency, however, was real. The police were in hot pursuit seeking to question defendant for a … Continue reading
W.D.Mich.: Differing possessory interest claims in state and then federal court is estoppel
At a state show cause hearing, plaintiff disavowed any possessory or property interest in two pit bulls, so he’s estopped from claiming it in a § 1983 case over the dogs. Crandall v. Newaygo Cty., 2023 U.S. Dist. LEXIS 104374 … Continue reading
D.V.I.: Flyover of curtilage from navigable airspace was reasonable
Officers did a flyover of defendant’s home from navigable airspace and saw a marijuana grow. While he had a subjective reasonable expectation of privacy in the curtilage, not from 2000′. United States v. Flavius, 2023 U.S. Dist. LEXIS 92974 (D.V.I. … Continue reading
M.D.Ga.: No right to challenge SW before execution
It isn’t apparent that there’s a right to challenge a search warrant before it is executed. (Rule 17 covers motions to quash subpoenas.) Even if there was, defendant doesn’t carry his burden. United States v. Crumpton, 2023 U.S. Dist. LEXIS … Continue reading
CA6: Officer observing “forced” baptism of drug offender as 1A & 4A violation gets QI for failure to intervene
A police officer was also a preacher. After a marijuana arrest, he elected to baptize the offender in an Ohio lake. He called Goforth, another officer, to attend, and that officer video recorded it. Later, the offender sued for a … Continue reading
CA9: SW application made “under penalty of perjury” satisfies the “oath or affirmation” requirement
A search warrant application made “under penalty of perjury” satisfies the “oath or affirmation” requirement. United States v. Morrow, 2023 U.S. App. LEXIS 11933 (9th Cir. May 16, 2023). Defendant prevailed on the merits of his honest services wire fraud … Continue reading
W.D.Wash.: Younger abstention bars suit over state prosecution and search
Plaintiff’s federal suit over his state search and prosecution is barred by Younger abstention. There’s no showing he can’t raise those issues in state court. Bailey v. City of Olympia Prosecutor, 2023 U.S. Dist. LEXIS 80175 (W.D. Wash. May 8, … Continue reading
E.D.Wis.: “Whistleblower” is still a CI whose story must be corroborated
A business fraud “whistleblower”’s statement was too conclusory to show probable cause. Franks hearing granted. United States v. Schampers, 2023 U.S. Dist. LEXIS 68205 (E.D. Wis. Apr. 19, 2023). Defendant was driving back and forth between Plattsburgh NY and Burlington … Continue reading
E.D.Tenn.: Mislabeling SW attachments not worthy of exclusion
Accidental reverse numbering of Attachments A and B didn’t make the search warrant void. United States v. Deakins, 2023 U.S. Dist. LEXIS 60866 (E.D. Tenn. Apr. 6, 2023).* Plaintiff’s claim that the Director of National Intelligence violates the Fourth Amendment … Continue reading
WA: Renter of hotel room could consent to search of room with co-occupants, but not of co-occupant’s stuff
“Here, Giberson was a guest in Goedker’s motel room. As a result, Goedker as the person renting the room had authority to give consent for law enforcement to search the room. … And even though Giberson was present, because he … Continue reading