Archives
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Recent Posts
- AR: RS def rented a hotel room was sufficient for search waiver; PC not required
- LA5: No standing to challenge search of shooting victim’s cell phone in def’s possession
- N.D.Okla.: Cell phones possessed by tribal police not subject to return under Rule 41(g)
- E.D.Ark.: Landlord and tenant refused rental property inspection and SW was validly issued and protected privacy interests
- D.D.C.: Judge shopping after denial of SW inappropriate; could have appealed to DJ
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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)
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--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: June 2020
Cal.3: Odor coming from a car and a baggie of MJ isn’t PC of a crime in a recreational MJ state
Because of legalization of recreational marijuana in California: “In summary, the facts in this case comprised of a parked car missing a registration tag and having an expired registration, the odor of marijuana emanating from the car, the observation of … Continue reading
Justia: The Third-Party Doctrine vs. Katz v. United States
Justia: The Third-Party Doctrine vs. Katz v. United States by Sherry F. Colb:
Protocol: New York lawmakers want to outlaw geofence warrants as protests grow
Protocol: New York lawmakers want to outlaw geofence warrants as protests grow by Issie Lapowsky (“Geofence warrants are a relatively new but rapidly expanding phenomenon. Rather than issuing a warrant for data on a specific individual, these warrants seek information … Continue reading
KS: Glover remanded to trial court
Kansas v. Glover is remanded to the trial court. State v. Glover, 2020 Kan. LEXIS 43 (June 12, 2020).
Courthouse News Service: Judge Declares Courthouse Immigration Arrests Illegal in New York
Courthouse News Service: Judge Declares Courthouse Immigration Arrests Illegal in New York by Adam Klasfeld:
N.D.Cal.: Search before knowing of probation search condition unreasonable
Standing outside the door to a recently parked vehicle with expired tags and holding the keys was reasonable suspicion the holder is the driver. Asking about probation or parole status and a search waiver is outside the mission of the … Continue reading
D.Md.: Even if defense counsel had pursued a motion to suppress and won, the proof was so strong there was no Strickland prejudice
Even if defendant on post-conviction could have shown that a motion to suppress would have been granted if made, he can’t show prejudice because the proof at trial showed he almost certainly would have been convicted even without that evidence. … Continue reading
CA8: Due process right to informational privacy not clearly established
Surveying SCOTUS cases, the court concludes that a due process right to informational privacy is not clearly established. Therefore, the motion to dismiss is granted. “Under Reichle, therefore, the uncertain status of the right to informational privacy means that Defendants … Continue reading
NPR: Supreme Court Will Not Reexamine Doctrine That Shields Police In Misconduct Suits
NPR: Supreme Court Will Not Reexamine Doctrine That Shields Police In Misconduct Suits by Nina Totenberg (“Amid the tumult over police brutality allegations across the country, the U.S. Supreme Court on Monday refused to reexamine the much-criticized, modern-day legal doctrine … Continue reading
Buzzfeed News: Many Police Departments Have Software That Can Identify People In Crowds
Buzzfeed News: Many Police Departments Have Software That Can Identify People In Crowds by Caroline Haskins (“BriefCam, a facial recognition and surveillance video analysis company, sells the ability to surveil protesters and enforce social distancing — without the public knowing.”)
D.Minn.: Def’s efforts to cast innocent explanation to the facts articulated by the officer don’t undermine PC
While it is certainly possible the officer likely had a subjective intent to search, “‘[s]ubjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.’ Whren v. United States, 517 U.S. 806, 813 (1996). A showing that a police officer … Continue reading
NY4: Failure to complete inventory report of the search doesn’t void search
“Contrary to defendant’s contention, even assuming, arguendo, that the police officers failed to comply with the inventory provisions of CPL 690.50(5), we conclude that noncompliance with that subdivision ‘does not undermine the validity of the search warrant or the search’” … Continue reading
NY4: Fire started during police standoff was exigency
Starting a fire during a police standoff is an exigent circumstance permitting a police entry after the fire was put out. “The entry and search occurred immediately after firefighters extinguished the fire that defendant had set during a standoff with … Continue reading
AZ: Cell phones “property” subject to probation searches
“Cell phones provide access to an immense array of private information, much of which is stored in the Cloud or on sites controlled by third parties. As such, the United States Supreme Court concluded in Riley v. California that people … Continue reading
Reason: Criminal Justice Divides the ‘Conservative’ Judiciary
Reason: Criminal Justice Divides the ‘Conservative’ Judiciary by Damon Root (“Pundits often speak of the judiciary in terms of liberal or conservative judges issuing liberal or conservative opinions. The reality is far more complicated.”)
D.Ariz.: Alleged Brady material found two years after SW wouldn’t change SW outcome
Alleged Brady material found two years after the search warrant in this case would not have changed the outcome of the search issue. United States v. Vandyck, 2020 U.S. Dist. LEXIS 101842 (D. Ariz. June 10, 2020). The officer was … Continue reading
NY: CBP officer at least was conducting a citizen’s arrest when he stopped def and turned him over to local police
A CBP maritime officer is not a LEO under NYS law but that didn’t void his stopping a vehicle while on duty in Buffalo for driving erratically. Buffalo officers were called, and he left to go back to work. They … Continue reading
CA2: Even if SW was issued without PC, GFE clearly applies
“Brennerman challenges the lawfulness of the search warrant of his Las Vegas apartment. Even assuming, for the sake of argument only, that the search warrant was unlawful, we conclude that the good faith exception to the Fourth Amendment’s exclusionary rule … Continue reading