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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,
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)
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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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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: Trespass
N.D.Iowa: Drug dog breaking plane of the car window is a trespass and entry without PC
The drug dog broke the plane of the window, and that’s a trespass. There was no probable cause at that point, and the R&R is rejected. The motion to suppress is granted. United States v. Buescher, 2023 U.S. Dist. LEXIS … Continue reading
D.Nev.: Clearly established state statute doesn’t translate to clearly established constitutional law
Clearly established state statute doesn’t translate to clearly established constitutional law for § 1983 qualified immunity purposes. Brown v. Tromba, 2023 U.S. Dist. LEXIS 149020 (D. Nev. Aug. 23, 2023).* “In their reply brief the OSA Defendants cite cases concerning … Continue reading
ID: Drug dog putting feet on car door and window during stiff was a trespass on the chattel and the search should have been suppressed
A warrantless Fourth Amendment “search” occurred when the police drug-sniffing dog trespassed against defendant’s vehicle for the purpose of obtaining information about, or related to, the vehicle. When the dog approached the driver’s side on his second pass, he clearly … Continue reading
CA9: Chalking tires not a 4A violation
Disagreeing with the Sixth Circuit, the Ninth holds that chalking tires does not violate the Fourth Amendment. It was going on for nearly a century before anyone challenged it. Verdun v. City of San Diego, 2022 U.S. App. LEXIS 29803 … Continue reading
N.D.Ind.: Passenger has no standing in a stolen car, even if he doesn’t know it’s stolen
Defendant has no standing in a stolen car he is a passenger in, even if he doesn’t know it’s stolen. Also, a key-locked safe in the car could be opened under inventory even though the policy doesn’t talk about it. … Continue reading
ID: Drug dog’s nose through a car window before alerting is a search and a Jones trespass
A drug dog’s nose through a car window before alerting is a search and a Jones trespass. De minimis, yet, but still a trespass. There was no probable cause for the automobile exception, and the state waived standing by not … Continue reading
CT: State const. protects against dog sniffs outside motel room doors
There is a privacy interest against a drug dog being employed in a motel hallway looking for drugs in rooms under the Connecticut Constitution. The court had previously found one in apartment buildings. The citizenry wouldn’t accept free wheeling dog … Continue reading
CA2 en banc: Directions to a suspect don’t make a stop a search without a trespass or an intrusion into a REP
CA2 en banc, summary by the court (8-3): “This case presents what is, in some respects, a familiar question: whether a police officer’s pat-down search of a suspect for weapons was reasonable under the Fourth Amendment. Based on the facts … Continue reading
CNS: Michigan city defends tire-chalking policy at Sixth Circuit
Courthouse News Service: Michigan city defends tire-chalking policy at Sixth Circuit by Kevin Koeninger (“The federal appeals court heard debate for the second time over whether chalking the tires of a parked car is an unconstitutional search under the Fourth … Continue reading
TX1: Police coming to door for knock-and-talk wasn’t a trespass
Police came to defendant’s door for a knock-and-talk, and, when he opened it, the officers smelled marijuana. They went off for a search warrant. Approaching the door for a knock-and-talk was not a trespass. Howard v. State, 2021 Tex. App. … Continue reading
UT: Def succeeds on claim opening car door can be a 4A search, but loses on Davis good faith reliance on prior case
Police opening the door of defendant’s car on a McDonald’s parking lot where he’d nodded off can be a search. Prior authority permitting it, State v. James, 2000 UT 80, 13 P.3d 576, is now limited. This can be a … Continue reading
CA9: Putting key in a car door to locate right car violates Jones and Jardines
Prior case law on inserting a key in a car door is not a search is contrary to Jones and Jardines. As a parole search, however, it can be reasonable if the car is connected to the parolee. United States … Continue reading
TX14: SW to take blood includes ability to forensically test it
The search warrant for taking defendant’s blood included the ability to forensically test it. The fact that the forensic analysis of defendant’s blood occurred at a date beyond the three-day window for execution of the warrant did not render the … Continue reading
D.Mont.: Testing a key in house locks to see if it works was a trespass under Jones and Jardines requiring a SW
Defendant was admitted to a mental hospital after a police call to an erratic person. Because of his apparent mental condition, his backpack was searched by hospital guards. That revealed a knife, a gun, and a house key. ATF was … Continue reading
GA: Retrieval of data from airbag control module after car wreck was search requiring warrant
Warrantless retrieval of data from the airbag control module (ACM) from a vehicle after a car crash was a search that required a warrant. Mobley v. State, 2019 Ga. LEXIS 694 (Oct. 21, 2019).
NJLJ: Editorial: Parking Space ‘Chalking’ Case Raises Questions on Fourth Amendment Jurisprudence
NJLJ: Editorial: Parking Space ‘Chalking’ Case Raises Questions on Fourth Amendment Jurisprudence: Technology is making universal surveillance of public spaces possible, and the right to be lost in the crowd will not depend on chalk. The real issue is not … Continue reading
AP: Michigan city asks full court to hear parking ticket case :: the “tire chalking case”
AP: Michigan city asks full court to hear parking ticket case by Ed White. The case is posted here and here. The tire chalking case gets a petition for rehearing en banc filed. No case, except maybe Carpenter, was the … Continue reading
CA6: Parking enforcement’s chalking a car tire is a trespass and a search
The City’s chalking a car tire for a potential parking violation invades the property of the owner of the vehicle and constitutes a search. Taylor v. City of Saginaw, 2019 U.S. App. LEXIS 11586 (6th Cir. Apr. 22, 2019):
CA5: Tapping a vehicle tire was a trespass but with RS and was reasonable on the totality
The tapping of a suspicious looking tire on a truck was a trespass under Jones and other cases, but the court finds it was with reasonable suspicion and reasonable on the totality. The tapping of the tire revealed that it … Continue reading
