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- D.Mont.: 30-day delay in getting SW for seized storage building not unreasonable
- E.D.Cal.: Smell of MJ still PC in a California National Park even though not under state law
- CA10 dissent: Bivens on its last legs
- VA: Consent to look in backpack permitted search of pill bottle
- NY3: Warrantless arrest body cavity search was unreasonable
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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)
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"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: Private search
NM: Motion to suppress checkpoint stop too general to put state on notice
“We conclude Defendant’s motion was insufficiently particular to alert the metropolitan court or State that the grounds for suppressing evidence related to the checkpoint’s illegality.” “Defendant’s motion, rather, was based upon the State lacking reasonable suspicion to detain Defendant. The … Continue reading
D.Nev.: Private prison’s recording of attorney-client calls states a claim
A criminal defense lawyer stated a claim against a private prison operator under the wiretapping laws for recording attorney-client calls. Bliss v. Corecivic, 2022 U.S. Dist. LEXIS 10953 (D.Nev. Jan. 18, 2022). 2254 petitioner’s illegal search claim barred by Stone. … Continue reading
MO: Trial court’s credibility findings on search incident of backpack was binding on appeal
The trial court suppressed the search of defendant’s backpack as incident to his arrest. The trial court heard conflicting testimony on whether it was within his reach, and concluded it was not. That’s binding on the standard of review. State … Continue reading
M.D.Fla.: Facebook capturing CP was private search; its ToS show no REP
Facebook’s passing on suspected child pornography on its platform is a private search. Moreover, Facebook’s terms of service show a lack of a reasonable expectation of privacy for child porn. United States v. Montijo, 2022 U.S. Dist. LEXIS 4577 (M.D.Fla. … Continue reading
TX8: Purely private search of cell phone not suppressed under art. 38.23(a)
The purely private search of defendant’s cell phone finding child pornography that was reported to police was not subject to exclusion under Texas’s art. 38.23(a). If a laptop search is not subject to exclusion, neither is a cell phone. Horne … Continue reading
CA5: NCMEC not public actor, but its search didn’t exceed private search
NCMEC is not a government actor for Fourth Amendment purposes. Even if it was, its search did not exceed that of the private searcher that forwarded the information to it. “Because Meals has not carried his burden concerning NCMEC’s participation … Continue reading
CA4: When POs knocked for a probation visit, sounds from inside gave RS for probation search
“Wimer contends that the probation officers who visited his home lacked reasonable suspicion to search his person. We find that, based on the totality of the circumstances, the officers had reasonable suspicion to search him. At the outset of the … Continue reading
W.D.Wash.: Carpenter does not apply to private searches
Carpenter does not apply to private searches, citing United States v. Miller, 982 F.3d 412, 431 (6th Cir. 2020), and United States v. Ringland, 966 F.3d 731, 737 (8th Cir. 2020). Kleiser v. Chavez, 2021 U.S. Dist. LEXIS 232013 (W.D.Wash. … Continue reading
LA1: SW not required under automobile exception
Defendant was involved in a struggle with another in a car, and he reached for the console to open it, and a gun was briefly visible. When he was finally arrested, a warrant was not required for search of the … Continue reading
CA6: 4A does not apply to a growing tree; it is not an “effect”
The Fourth Amendment does not apply to a growing tree which is part of the real property. “But the Supreme Court has told us that real property is not an ‘effect’ within the meaning of the Fourth Amendment. Oliver v. … Continue reading
W.D.N.Y.: Mere allegation the private search was expanded fails; def has to show something
Defendant alleges that NCMEC or the police expanded a private search. “However, Defendant concedes that he has no knowledge or evidence that either NCMEC or the police expanded the scope of the Facebook search. … Therefore, Defendant cannot assert that … Continue reading
CA9: Police exceeded Google’s private search of email
Google viewed defendant’s email attachments and reported child pornography, but when police got their hands on it, they exceeded the private search. United States v. Wilson, 2021 U.S. App. LEXIS 28569 (9th Cir. Sept. 21, 2021):
M.D.La.: Court finds RS for a traffic stop, so CI tip doesn’t have to be considered
“Turning to the facts of the instant case, the Court must resolve the central question: did Nations see Defendant commit a traffic violation? Having listened to Nations’ testimony, observed him in open court, and reviewed the video and written transcript … Continue reading
M.D.Pa.: ISP’s duty to report CP under 18 U.S.C. § 2258A doesn’t make it still not a private search
Kik’s duty to report child pornography on its platform under 18 U.S.C. § 2258A doesn’t make its search still not a private search. United States v. Hart, 2021 U.S. Dist. LEXIS 111166 (M.D. Pa. June 14, 2021). The trial court … Continue reading
D.Mass.: 14 day delay between seizure and search of cell phone reasonable
This 14 day delay between the seizure of his cell phones and the application of the warrant to seize them is reasonable. In addition, there is no Fourth Amendment right to have a search warrant issued sooner than it was, … Continue reading
E.D.Mo.: Sexual assault allegation by school official states 4A claim
Allegation of a sexual assault by a school official states a Fourth Amendment claim. Hermann v. Kirkwood R-7 Sch. Dist., 2021 U.S. Dist. LEXIS 102574 (E.D. Mo. June 1, 2021). Officers with a search warrant for electronic devices could look … Continue reading
AZ: Even if NCMEC was not private actor, it didn’t expand the prior private search
In Arizona, Fourth Amendment claims are decided first, then state constitutional claims. Google+, acting completely on its own, searched defendant’s photos folder stored with there. Moreover, it was only shown to be protecting its private business interests, not aid the … Continue reading
N.D.Ohio: 5 yo child wandering in apt parking lot at 2:30 am was exigency when door was open to apt
A five year old boy found wandering at 2:30 am in an apartment building parking lot was exigency for the police to further open defendant’s partially open door when the apartment was found. United States v. Shorter, 2021 U.S. Dist. … Continue reading