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Recent Posts
- W.D.Wash.: DNA warrant isssued with PC not quashed before execution
- S.D.Ohio: Defense of denial of possession in drug case meant no assertion of standing to challenge the search, so no IAC
- N.D.Okla.: Anticipatory tracking warrant for money counter is without authority and nexus is speculative even if not
- CA9: Supervised release condition of financial disclosure permitted under 18 U.S.C. § 3553(a) and didn’t violate 4A
- N.D.Ohio: Refusing discovery on 4A grounds in forfeiture case results in no standing
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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: Seizure
RI: Officer doesn’t need to state a reason for occupants to get out of car under Mimms
Under Mimms, the occupants can be ordered out of the car during a stop. The fact the trial judge disagreed with the three rationales offered for it by the officer doesn’t matter. State v. Li, 2023 R.I. LEXIS 90 (July … Continue reading
D.Nev.: Request of internet provider to preserve evidence under 18 U.S.C. § 2703(f) is not a seizure
“Here, the Court finds that Omegle and TextNow’s preservation of evidence in response to the Government’s request under 18 U.S.C. § 2703(f)—a provision of the Stored Communications Act—did not violate the Fourth Amendment for two reasons. First, because the preservation … Continue reading
OH8: Dog alert on a car permits search of containers in it
A dog alert on a car was probable cause for a search of it and containers, here a backpack. State v. Kumuhone, 2023-Ohio-2586, 2023 Ohio App. LEXIS 2554 (8th Dist. July 27, 2023). “The contemporaneous tip, the visual details that … Continue reading
CA6: Unintended target of a police shooting, another officer, has a 4A seizure and excessive force claim
One officer fired a gun at a suspect inside a dwelling, apparently without aiming, and hit another officer. That was still a Fourth Amendment seizure of the person of the officer despite being an unintended target. Kilnapp v. City of … 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
CA10: Despite SW’s overbreadth, executing officers understood the crime under investigation; GFE applies
The warrant was previously held overbroad and the case was remanded to the district court for findings on the good faith exception. In this second appeal, the good faith exception applies. The officers understood the limits in the warrant to … Continue reading
LA4: State carries burden on inevitable discovery and it failed here
Here there was a warrantless entry into the house for a gun. Defendant was in custody outside. The state had the burden on inevitable discovery and failed. “In the instant case, the state failed to point to any alternative lawful … Continue reading
NY Co.: SW not timely executed is suppressed
Search warrants in NY have to be executed within ten days. This cell phone warrant wasn’t, so suppression is granted. The order is stayed so the state can decide whether to appeal. People v. Nurse, 2023 NY Slip Op 23167, … Continue reading
VA: Later adopted statutory exclusionary rule not retroactive
A statutory exclusionary rule for a particular action that was adopted after the search and seizure was not retroactive. Moore v. Commonwealth, 2023 Va. App. LEXIS 343 (CMay 30, 2023) (unpublished).* The totality shows reasonable suspicion to extend the stop … Continue reading
NJ: Computer return of car owner’s suspended DL justified stop, but it had to end when it was obvious driver was not owner
A police car computer that tells the officer the owner of a vehicle has a suspended license is reasonable suspicion for a stop, unless there is objective evidence the driver cannot be the owner. Here, it was obvious the driver … Continue reading
CA6: Misstatements in arrest warrant affidavit didn’t prejudice ptr or prevent state trial
In this 2254, without citing Stone v. Powell, the court holds on the merits of the Fourth Amendment claim that misstatements in the arrest warrant affidavit did not prejudice the petitioner because it would not have prevented the trial. Harris … Continue reading
SD: Def not in custody during DNA SW when asked basic questions
Despite language difficulties, defendant did speak some English, enough to refer to erection difficulties, and he never indicated he didn’t understand. He was not in custody for Miranda purposes when he was asked some basic questions and volunteered information while … Continue reading
M.D.Pa.: Holding ptf’s car for 9 weeks without justification states 5A, not 4A, claim
Police seized plaintiff’s car and held it without justification for nine weeks. Plaintiff’s states a claim under the Fifth Amendment, but not the Fourth. Kelly v. Bell, 2023 U.S. Dist. LEXIS 74807 (M.D. Pa. Apr. 28, 2023). “A search-warrant advisory … Continue reading
CA8: Merely pointing a Taser not a seizure
Pointing a Taser at plaintiff was not a seizure. Pollreis v. Marzolf, 2023 U.S. App. LEXIS 10269 (8th Cir. Apr. 27, 2023). Even if possession of a firearm in a concealed carry state was not unlawful, smoking marijuana with a … Continue reading
IL4: Despite legalization of possession of small amounts of MJ, dog alert still PC
The drug dog’s “positive alert on the vehicle in this case established a fair probability that drugs or evidence of a crime would be found in the vehicle. This is true despite recent changes in the law regarding the legalization … Continue reading
MN: Underlying conviction can’t be challenged on 4A grounds
In a driver’s license suspension case, the fact an underlying out of state driving offense was allegedly obtained in violation of the Fourth Amendment is no defense. It was final. Underhill v. Comm’r of Pub. Safety, 2023 Minn. App. LEXIS … Continue reading
CA8: Omission of fact CI lied about prior murder for hire schemes wasn’t material enough where one recorded ptf
This was a murder for hire scheme. The affiant had good information that the CI was a notorious liar, having falsely alleged other schemes in the past. Here, however, there was “powerful” evidence of probable cause in recordings to back … Continue reading
CA9: SOL on search claim starts with the search
Case over search dismissed on SOL grounds. Plaintiff on notice from the time of the search. Reyes v. Cty. of Wash., 2023 U.S. App. LEXIS 9353 (9th Cir. Apr. 19, 2023). The officers obtaining and executing the warrant for defendant’s … Continue reading
D.Haw.: Covid quarantines were not 4A seizures
Hawai’i’s Covid quarantines were not Fourth Amendment seizures to aid government intrusions. For Our Rights v. Ige, 2023 U.S. Dist. LEXIS 66956 (D. Haw. Apr. 17, 2023). Exigent circumstances for warrantless police action is based on an objective standard. United … Continue reading
C.D.Cal.: Mere seizure of a firearm not per se a 2A violation
“‘The mere occurrence of a firearm seizure during a traffic stop, however, is not enough to establish a Second Amendment violation. Police seize and confiscate firearms routinely, and this Court will not presume that each and every one of those … Continue reading