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- LA4: Merely having a concealed firearm isn’t RS for a frisk
- OR: Merely driving off the road wasn’t RS, but adding the driver’s demeanor at the time was
- OH6: Trial court’s failure to explain RS under Rodriguez required remand
- CA6: Asking def before a patdown during arrest what he had on him wasn’t barred by Miranda
- NY Queens: PC shown for SW blood drawn at hospital after car wreck
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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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--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: Cell site location information
OH7: Questioning def about drugs on his person extended stop
The traffic stop was delayed, and the public safety exception was not applicable, where the officer asked a compound question, and the questioning only appeared directed at getting an admission by appellant that he had drugs on him and suggesting … Continue reading
IL: Arrest on a CPD “investigative alert” unreasonable
The use of an CPD “investigative alert” to arrest defendant was unreasonable and a violation of the Fourth Amendment (but harmless on the totality). People v. Smith, 2022 IL App (1st) 190691, 2022 Ill. App. LEXIS 329 (July 18, 2022). … Continue reading
D.Ariz.: Pre-Carpenter CSLI required compliance with SCA and here state officers didn’t
The government pleads the CSLI order was pre-Carpenter and thus subject to the good faith exception. The court finds, however, that the Stored Communications Act was not complied with and the government does not get the benefit of the good … Continue reading
GA: Trial questions about SW affidavit properly excluded where officer didn’t prepare affidavit
Trial questions to one officer about alleged false statements in a search warrant affidavit attributed to him but where it was not written by him were excluded. This was not an abuse of discretion since he wasn’t the affiant. Harris … Continue reading
Scientific American: Yes, Phones Can Reveal if Someone Gets an Abortion
Scientific American: Yes, Phones Can Reveal if Someone Gets an Abortion by Sophie Bushwick (“To protect personal information from companies that sell data, some individuals are relying on privacy guides instead of government regulation or industry transparency.”)
D.N.M.: Emergency justification for real time CSLI dissipated and leads to suppression
Capture of defendant’s real-time CSLI was a search under Carpenter, but the government showed that officers had an emergency justification for getting it at first, but that dissipated. Finally, the good faith exception does not apply here. United States v. … Continue reading
D.Md.: Facebook subject to search because of interactions there with co-conspirator
Defendant’s Facebook page was subject to being searched because there were interactions on it with a coconspirator, and that showed probable cause. United States v. Daprato, 2022 U.S. Dist. LEXIS 78626 (D.Md. May 2, 2022).* “Frey’s motion to suppress evidence … Continue reading
OR: A metal box next to def when stopped was subject to search incident here
Even under Oregon’s restrictive search incident doctrine, the search of a metal box next to defendant was reasonable. She was suspected of stealing from a Salvation Army donations trailer when she was stopped. Practically anything in her vehicle looked like … Continue reading
CA6: There was PC for SW for real time pinging of def’s cell phone
There was probable cause for a search warrant for real time pinging of defendant’s cell phone to try and find out where he was. United States v. Ennis, 2022 U.S. App. LEXIS 8779 (6th Cir. Apr. 1, 2022). Defendant was … Continue reading
MD: Def’s DNA from a prior dismissed case admissible here
Defendant’s DNA was obtained in a 2014 case that was dismissed. The DNA from that was used to connect him to this case. The prior DNA results are not excludable just because the case went away. Hayes v. State, 2022 … Continue reading
D.Mass.: Pretrial inmate mail was subject to search even though inmate handbook didn’t discuss it
While the pretrial inmate handbook didn’t say that outgoing mail was subject to inspection, the Supreme Court held in Stroud in 1919 that such searches were reasonable. And this one was too. United States v. Polanco, 2022 U.S. Dist. LEXIS … Continue reading
OR: Pinging fleeing murder suspect’s cell phone was reasonable
The warrantless pinging of a fleeing murder suspect’s cell phone was with exigent circumstances and was reasonable under the Fourth Amendment and the [even more protective] Oregon Constitution. The information the police had showed defendant was still a threat to … Continue reading
SC: Officers obtained text messages in murder case with emergency request
The state’s obtaining CSLI here is not suppressed. Officers worked backwards from the murder victim’s cell phone and an emergency request for text messages and got them and linked them to defendant. It was inevitable that defendant’s CSLI would be … Continue reading
DE: Carpenter doesn’t apply to specific cell tower dumps obtained by SW
Carpenter doesn’t apply to specific cell tower dumps obtained by search warrant. “The warrants present in this case are not a top-to-bottom search of any and all stored data of the digital contents of the devices and ‘any other information/data … Continue reading
PA: No REP in data moving back and forth over a (nearly) public wifi connection where user agreement told users that
Defendant connected to the wifi at his college, and he was aware of the computing access policy that said that he had no Fourth Amendment reasonable expectation of privacy in the information that moved back and forth over his connection. … Continue reading
M.D.Pa.: Exigency permitted warrantless CSLI pings
Only the owner of a cell phone has standing to challenge tracking the phone with a Stingray. Warrantless pings to locate the phone were shown by the government to be based on exigent circumstances. United States v. Baker, 2021 U.S. … Continue reading
OH7: Visitor to hotel room with no key or shown association to room had no standing
Defendant was a visitor to a hotel room and he had no standing to challenge its search. He had no key to the room and no luggage or other belongings, and he couldn’t show he was a guest of either … Continue reading
NE: Time limited call and CSLI records were particular
The misstatements in the affidavit for the warrant here was negligence at worst, and that bars suppression. The affidavit for the warrant for defendant’s phone provided at least a “modicum” of information supporting probable cause. So, even assuming a lack … Continue reading