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- LA3: Cell phone ping to locate def in a shooting investigation was exigent
- Marshall Project: I ‘Stood My Ground’ — but It Was the Police Raiding My House
- NYLJ: New York’s Red Flag Law Raises a Red Flag for the Fourth Amendment
- D.P.R.: Cell phone records obtained by SW not self-authenticating as evidence under 902(11)
- W.D.Wis.: No habeas relief for unlawful arrest
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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 -
© 2003-23,
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) -
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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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"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: Body searches
E.D.Mo.: Inventory of car totaled in flight from police was reasonable on totality
The inventory of defendant’s car after he totaled it fleeing from the police in a wreck was reasonable on the totality. Defendant argued that inventory was improper just from curiosity. United States v. Twiggs, 2023 U.S. Dist. LEXIS 204654 (E.D. … Continue reading
W.D.Wash.: Seizure of cell phone incident to arrest not invalid because it preceded actual arrest
Seizure of defendant’s cell phone incident to arrest wasn’t unreasonable just because it was seized before the arrest. United States v. Garg, 2023 U.S. Dist. LEXIS 183140 (W.D. Wash. Oct. 11, 2023). An extraneous name appearing in a warrant affidavit … Continue reading
W.D.Okla.: Pepper spray use under the circumstances was reasonable
“Anthony argues that Gottschalk used excessive force when he sprayed him with OC spray, which the court now refers to as pepper spray. Applying the Graham factors and considering the totality of the circumstances, the court concludes that a reasonable … Continue reading
S.D.W.Va.: No 4A right to leaving SW at scene of search
Searching officers do not violate the Fourth Amendment by not leaving a copy of the search warrant, let alone the original. Carter v. Luciano, 2023 U.S. Dist. LEXIS 101723 (S.D. W. Va. June 12, 2023).* The search warrant was based … Continue reading
MI grants review in zoning drone case: Long Lake Twp. v. Maxon
Michigan SCt to set argument on whether it violates the Fourth Amendment to use a drone for aerial photography in zoning disputes. Long Lake Twp. v. Maxon, 2023 Mich. LEXIS 768 (May 24, 2023).* The issues: “(1) whether the appellee … 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
ID: Not telling arrestee reason for arrest in violation of statute not a 4A violation
Failure to notify an arrestee of the reason for his arrest in violation of the statute does not make the arrest violate the Fourth Amendment or state constitution. State v. Lancaster, 2022 Ida. LEXIS 133 (Nov. 1, 2022). There were … Continue reading
W.D.Va.: Def’s resisting execution of a SW was a factor in finding dangerousness to deny release pending trial
Defendant’s resisting his arrest, including a search warrant, was a factor in denying release pending trial. United States v. Wagoner, 2022 U.S. Dist. LEXIS 25232 (W.D.Va. Feb. 11, 2022). Questions of fact exist on whether plaintiff’s forced digital rectal exam … Continue reading
CT scan for swallowed SD card with alleged CP
WaPo: Maryland judge about to be arrested dies in apparent suicide recounts his CT scan with a search warrant to locate an SD card with alleged child porn he swallowed to hide it from investigators.
CT: Statutorily required HIV testing in sex case without showing of need violated state constitution
Compulsory HIV testing of a person accused in a sex crime violates the state constitution’s privacy and search and seizure provision. There is a lack of medical justification for it. State v. Bemer, 2021 Conn. LEXIS 205 (July 14, 2021). … Continue reading
CA7: Groin search for drugs on side of highway was reasonable
Defendant’s side-of-the-road groin search and the reach into his underwear for a ball of drugs was reasonable on the totality. Brown v. Kazmierski, 2021 U.S. App. LEXIS 19962 (7th Cir. July 6, 2021):
PA: DUI with agg. assault was sufficiently exigent to dispense with SW for BAC
Defendant was accused of DUI and aggravated assault, and the officer decided that the additional complexity of investigating the assault charge made a warrantless blood draw exigent. It didn’t matter that the state charged him with the assault two months … Continue reading
S.D.N.Y.: Random Covid testing reasonable search under special needs doctrine
Assuming random Covid testing of NYC school children is a Fourth Amendment search, the court applies Vernonia School District 47J and special needs and finds it reasonable. Aviles v. De Blasio, 2021 U.S. Dist. LEXIS 38930 (S.D. N.Y. Mar. 2, … Continue reading
CA1: Controlled buys were RS for a later stop
“Based on the previous controlled drug sales in which agents had seen Ochan participate — including the sale that day — agents had specific knowledge that Ochan sold drugs. From there, the sequence of events on the day of Tom’s … Continue reading
OH1: Blood draw from unconscious driver is by consent and reasonable
“Under [Ohio statute] an unconscious driver is deemed to have consented to a blood draw,” and that doesn’t violate the Fourth Amendment. State v. Albright, 2021-Ohio-292, 2021 Ohio App. LEXIS 301 (1st Dist. Feb. 3, 2021).* 2255 petitioner’s Fourth Amendment … Continue reading
CA5: Ptf’s manual strip and body search in prison for a missing syringe was reasonable
Plaintiff’s manual strip and body search in prison for a missing syringe was reasonable. Parker v. Woods, 2020 U.S. App. LEXIS 36359 (5th Cir. Nov. 19, 2020):
D.Mont.: Warrantless taking of penile swabs from def in custody lacked exigency
Warrantless collection of penile swabs from defendant in custody lacked exigent circumstances and was suppressed. United States v. Birdsbill, 2020 U.S. Dist. LEXIS 196612 (D. Mont. Oct. 20, 2020):
TX: SW to draw blood in DUI case allows testing for BAC
A search warrant to draw defendant driver’s blood included the ability to test it for BAC. But not anything else, such as genetic information, but that’s not the issue. Crider v. State, 2020 Tex. Crim. App. LEXIS 612 (Sept. 16, … Continue reading
Argus Leader: Federal judge awards thousands to those forcibly catheterized for urine samples
Argus Leader: Federal judge awards thousands to those forcibly catheterized for urine samples by Danielle Ferguson (“A federal judge has approved a settlement to individuals who were unconstitutionally made to provide urine samples for suspected drug use through forced catheterizations. … Continue reading