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Recent Posts
- W.D.Wash.: DNA warrant isssued with PC not quashed before execution
- S.D.Ohio: Defense of denial of possession in drug case meant no assertion of standing to challenge the search, so no IAC
- N.D.Okla.: Anticipatory tracking warrant for money counter is without authority and nexus is speculative even if not
- CA9: Supervised release condition of financial disclosure permitted under 18 U.S.C. § 3553(a) and didn’t violate 4A
- N.D.Ohio: Refusing discovery on 4A grounds in forfeiture case results in no standing
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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: July 2020
TX1: SW to seize blood sample implicitly means it can be tested, too
A search warrant for a blood sample implicitly includes testing it. Davis v. State, 2020 Tex. App. LEXIS 5990 (Tex. App. – Houston (1st Dist.) July 30, 2020). Probable cause existed for seizure of five years of defendant’s Gmail account. … Continue reading
SC: Unzipped pants in traffic stop contributed to RS
“Because we must evaluate the trial court’s findings for clear error, we reluctantly conclude evidence supported the trial court’s finding the officer had reasonable suspicion to extend the stop.” Partly from unzipped pants which suggests to the officer hiding drugs … Continue reading
CA10: Shooting of decedent when he raised a gun at his arrest appears justified
When officers, including the SWAT team, came to arrest the decedent, he had a gun in hand and raised it. He was already known to be potentially violent, and the shooting was reasonable under the circumstances. Estate of Valverde v. … Continue reading
D.Mont.: Failure to keep patrol car camera “serviceable” doesn’t bear on RS
“Finally, Imhoff argues that Trooper Fetterhoff violated the Montana Highway Patrol’s code of conduct by failing to keep his interior camera “serviceable.” … Again, even assuming that Fetterhoff violated policy, any such violation would not bear on the sole relevant … Continue reading
FoxNews: Google CEO says tech giant deletes this information used by police
FoxNews: Google CEO says tech giant deletes this information used by police by Brooke Brothers (“Google now sets a time limit on data used by police for tracking suspects, the CEO said at Wednesday’s congressional hearing with tech giants. The … Continue reading
The Oklahoman: Portable x-ray for traffic stops
The Oklahoman: McClain County sheriff’s new device seeks contraband by Randy Ellis (“The McClain County Sheriff’s Office has new technology to use in its war on drugs and other crime — a hand-held X-ray device. The sophisticated technology can see … Continue reading
MI: Flint water crisis case states claim for due process violation of bodily integrity
The suit over the City of Flint water crisis stated a claim, inter alia, for a due process violation of bodily integrity. Mays v. Snyder, 2020 Mich. LEXIS 1351 (July 29, 2020) (plurality). The A.F. Ct. Crim. App. erred in … Continue reading
E.D.Va.: Amazon gets TRO and PI in civil RICO case based on same allegations for SW a contractor was seeking kickbacks
The FBI conducted a raid of an Amazon contractor in Northern Virginia for kickbacks. Amazon sought a TRO and preliminary injunction against the defendants seeking to prevent spoliation of evidence after the target told alleged confederates of the raid by … Continue reading
N.D.Ind.: Sound of a gun hitting the sidewalk was a factor in RS
Shots-fired call led to defendant’s patdown with reasonable suspicion, and it produced ammunition and a holster. “It was after dark, there were reports of gunshots, and in the immediate aftermath of those, there was a likelihood that an emergency was … Continue reading
CA10: Factual basis for trial for unreasonable use of deadly force in shooting at a fleeing car
There was a factual basis for trial that it was apparent the use of deadly force here was unreasonable and unnecessary in shooting at a fleeing car. Reavis v. Frost, 2020 U.S. App. LEXIS 23731 (10th Cir. July 28, 2020).* … Continue reading
W.D.Pa.: Intervention for return of A-C privileged information denied as moot because they have the information
Intervention in a criminal case to attempt to recover information obtained in alleged violation of the attorney-client privilege is denied as moot. They already have that information, and there is a fundamental difference between recovery of property under Rule 41(g) … Continue reading
MN: Defense SDT for victim’s cell phone was not a 4A issue but was governed by law of subpoenas
The defendant in a sex case sought a subpoena duces tecum for the alleged victim’s cell phone. The state responded that the Fourth Amendment requires probable cause and an order. The court declines to find that the Fourth Amendment applies … Continue reading
FL3: PC for arrest isn’t governed by substantive law of constructive possession
The standard for probable cause is not high, and it isn’t even a preponderance of the evidence. Thus, the substantive law of constructive possession on who is where in relation to the evidence seized doesn’t govern arrest. J.J. v. State, … Continue reading
CNET: Lawmaker questions Google’s CEO about geofence warrants
CNET: Lawmaker questions Google’s CEO about geofence warrants by Alfred Ng (“The warrants allow police to sweep up location data belonging to any people who were in a specific area. | Geofence warrants are facing legal challenges across the US, … Continue reading
CA2: 31 day delay in getting SW for computer after seizure was unreasonable under 4A
“Following the district court’s hearing and ruling that the delay was not unreasonable, the appeal has been restored to this panel. We now rule that the police delayed unreasonably long in violation of the Fourth Amendment when they waited without … Continue reading
CA7: Smell of burnt MJ along with def’s reaction when asked was PC
“Because the totality of the circumstances, including the smell of burnt marijuana and Kizart’s reaction and behavior when Russell asked Kizart about the trunk, provided probable cause to search his car’s trunk, we Affirm the denial of the motion to … Continue reading
MD: With decriminalization of MJ, smell alone is not PC
The decriminalization of marijuana in Maryland, the odor of marijuana, without more, is not probable cause. Smell alone doesn’t tell the quantity. Lewis v. State, 2020 Md. LEXIS 348 (July 27, 2020):