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Recent Posts
- techdirt: The Problems Of The NCMEC CyberTipline Apply To All Stakeholders
- W.D.Ark.: Parole search waiver moots lack of PC argument
- AR: RS shown for boating while intoxicated stop
- W.D.Mo.: Wrong address in SW wasn’t fatal where right house was searched
- NY: Failure to show independent source for officer’s observation of def required reversal
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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)
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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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Monthly Archives: May 2020
CA6: Duration of police dog bite as reasonable force
Zuress v. City of Newark, 2020 U.S. App. LEXIS 17134 (6th Cir. May 29, 2020):
N.D.Cal.: SW was issued before entry; even if not, emergency justified the entry
“On this record, Reynolds has not shown that the search of his room was illegal. The officers did not enter it until they had a valid warrant. For the sake of completeness, the Court also finds that entering Reynolds’s room … Continue reading
AL: Dog sniff at apt door unreasonable under Jardines
“We consider whether the use of a drug-sniffing dog to sniff the door seams of the apartment was, under the reasoning of Jardines, an illegal search in violation of Earl’s Fourth Amendment right to be free from unreasonable searches. We … Continue reading
TN: Without findings of fact, the appellate court can review the dashcam video and draw its own conclusions
The trial court didn’t make findings of fact, so the appellate court can review the dashcam video and draw its own conclusions. “The trial court reviewed the testimony of the only witness and made an implicit finding that his testimony … Continue reading
CA5: Protective sweep reasonable after def first barricaded himself and then surrendered
A protective sweep was justified on defendant’s arrest after he’d barricaded himself inside and then gave up. United States v. Hernandez, 2020 U.S. App. LEXIS 17027 (5th Cir. May 28, 2020). Petitioner isn’t entitled to a writ of mandamus for … Continue reading
CA9: Motel operator in Los Angeles fails to state Patel claim
Plaintiff’s second amended complaint didn’t state a City of Los Angeles v. Patel claim. “The SAC’s allegation that the Motel’s registration records were searched pursuant to a CUP condition that was imposed by a vote of the City Council provides … Continue reading
Franks from IL and CA
The affidavit for this search warrant from a 1992 California murder did not include intentional falsities or misrepresentations. The affiant summarized witnesses’ versions of defendant’s description. Even if they were false, removing them from the affidavit still leaves probable cause. … Continue reading
TX1: Officer’s subjective motivation to follow to observe more driving didn’t undo the RS
The officer’s testimony was the same as the dashcam video, and supported reasonable suspicion. However, “The trial court found there was no reasonable suspicion of the offense of driving while intoxicated based on Cardenas’s testimony, supported by video evidence, that … Continue reading
CA11: Def’s wife’s search of his cell phone finding child pornography and then taking the phone to the police was a private search
Defendant’s wife’s search of his cell phone finding child pornography and then taking the phone to the police was a private search for her personal reasons. United States v. Rivera-Morales, 2020 U.S. App. LEXIS 17116 (1st Cir. May 29, 2020):
FL1: Possession of a concealed weapon in Florida isn’t inherently criminal, so no RS
Possession of a concealed weapon in Florida isn’t inherently criminal, and the officer lacked reasonable suspicion for a patdown and removing the gun from defendant’s waistband. Kilburn v. State, 2020 Fla. App. LEXIS 7525 (Fla. 1st DCA May 29, 2020) … Continue reading
AR: No abuse of discretion in not forcing state to disclose that which it couldn’t get from HBO camera crew being at search
An HBO crew was present at the drug raid here while filming “Meth Storm.”The prosecutor didn’t know about it until the eve of trial, and he sought to get the video and couldn’t, and he disclosed to the defense. The … Continue reading
KY: Criminal history check during traffic stop is reasonable; the officer needs to know who he or she is dealing with
The stop had not concluded, and it wasn’t unreasonably extended by the officer. Criminal history checks are reasonable. “Accordingly, the officer may take reasonable steps to ascertain whether the persons with whom he is dealing might be dangerous. To this … Continue reading
Law.com/NYLJ: COVID-19 and the Constitution: How the Bill of Rights Is Being Tested by the Coronavirus
Law.com/NYLJ: COVID-19 and the Constitution: How the Bill of Rights Is Being Tested by the Coronavirus by John Curran, Jake Gardener and Jeffery Ding (“The coronavirus is set to test our Bill of Rights more broadly than any other event … Continue reading
E.D.Ark.: “After editing out the incomplete and false portions of the warrant affidavit, the remaining information was insufficient to establish” PC
“After editing out the incomplete and false portions of the warrant affidavit, the remaining information was insufficient to establish that Green was dead and that his death was caused by the criminal act of another person. Accordingly, the Court finds … Continue reading
D.Nev.: Six days to draft a cell phone SW was reasonable
The government was diligent in getting a warrant over six days, including a weekend, where the agents and the USAO spent most of three days drafting it. “Still, the Fourth Amendment obligated the United States to ‘diligently obtain[ ] a … Continue reading
CA9: Bringing police with criminal investigative motive to execute admin. warrant was unreasonable
An administrative inspection warrant is based on a programmatic probable cause standard, and not probable cause to believe that a crime occurred. Using the Los Angeles County Sheriff’s Office to help do a City of Lancaster administrative entry and search … Continue reading
CA8: Police shooting of man with gun who hadn’t pointed it without warning was unreasonable
The use of deadly force here wasn’t reasonable under the Fourth Amendment. The shooting victim had a gun in hand but he hadn’t threatened the officer with it. The failure to give a warning warn “exacerbate[s] the circumstances” and supports … Continue reading
TN: With no findings of fact, court can look at dashcam video and draw own conclusion suppression was appropriate
The trial court didn’t make findings of fact, so the appellate court can review the dashcam video and draw its own conclusions. “The trial court reviewed the testimony of the only witness and made an implicit finding that his testimony … Continue reading
OH5: Trial court’s finding of officer’s credibility where dashcam didn’t help was binding on appeal
The dashcam video was inconclusive on whether defendant stopped, but the trial court credited the officer, and that’s binding on the court of appeals. State v. Blasingame, 2020-Ohio-3087, 2020 Ohio App. LEXIS 2029 (5th Dist. May 21, 2020).* Two dashcam … Continue reading
M.D.Tenn.: Failure to corroborate everything, even the easy to corroborate, isn’t reckless under Franks
Defendant did not make a substantial preliminary showing that there was a reckless material statement in support of the search warrant. Moreover, “Defendant provides no authority to support his position that an officer’s failure to corroborate a fact that ‘could … Continue reading