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Recent Posts
- 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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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)
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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: October 2020
ABA CJS: The Privacy Implications of DUI Refusals and Forced Blood Alcohol Tests: What Judges Can Do
ABA CJS: The Privacy Implications of DUI Refusals and Forced Blood Alcohol Tests: What Judges Can Do by Hon. Zuberi Bakari Williams (“Usually, a refusal to take an alcohol breath test ends the collection of evidence of alcohol for routine … Continue reading
CA5: Examination of addresses on package was reasonable and led to RS
There was reasonable suspicion for detaining this package based on the lack of veracity of the delivery and return addresses. Examination of the package in the mail sorting system was not a search or seizure. United States v. Jones, 2020 … Continue reading
KS: Looking in purse of unconscious driver was reasonable
The emergency aid exception applied: “Officer Brown searched Smith’s purse seeking Smith’s identity and any information that would explain the nature of Smith’s condition and the best means of treating it. When the officer made this decision, the paramedics were … Continue reading
D.S.D.: Seizure of work product from def’s jail cell for witness tampering was reasonable and run through a taint team
The search of defendant’s jail cell for evidence of witness tampering in his “work product” was reasonable, and the government used a taint team to segregate it. “The government’s conduct in this case was neither ill-conceived nor outrageous. It must … Continue reading
PA: CSLI warrant was particular with phone number and time, without name of owner
CSLI warrant was particular when it described the phone number and time period and didn’t have to name the phone owner. Commonwealth v. Davis, 2020 Pa. Super. LEXIS 885 (Oct. 23, 2020). The officer spent a week corroborating the CI, … Continue reading
D.S.D.: Failure to bring affidavit for SW to scene of search doesn’t obviate GFE
The affidavit for this search warrant was based on probable cause. “Law enforcement’s failure to bring the affidavit in support of the search warrant to the scene of the search is not fatal to the good-faith exception’s application. … The … Continue reading
WaPo: Senators seek IG probe of border agency’s warrantless use of phone location data
WaPo: Senators seek IG probe of border agency’s warrantless use of phone location data by Drew Harswell (“In August, Customs and Border Protection subscribed to a service that reports the location of cellphones to businesses.”)
GA: Search incident to arrest without PC is suppressed
The trial court did not apply the beyond a reasonable doubt standard to the search, contrary to the state’s argument. It did apply the preponderance standard, and the record supports its finding that the state failed to show probable cause … Continue reading
CA10: QI denied over mistakenly obtained arrest warrant
A bunch of arrest warrant affidavits were executed in a drug sweep. Plaintiff’s, however, was seriously mistaken, and he was arrested. The district court’s qualified immunity summary judgment for him is reversed. Bickford v. Hensley, 2020 U.S. App. LEXIS 33400 … Continue reading
IN: Def didn’t show standing in an apartment where his pants were
Defendant failed to show standing in an apartment he had a pair of jeans in where the officer stepped on them during a walk through and felt drugs underfoot. The police responded to a domestic call, and found defendant outside … Continue reading
VA: Automatic license plate reader information does not form an “information system”; injunction dissolved
Injunction against local police use of license plate readers vacated. “We agree with the Police Department that the ALPR system does not constitute an ‘information system’ within the intendment of the Data Act and we, therefore, reverse the decision below.” … Continue reading
OR: Def’s consent and statements are suppressed, but the search with a warrant is not
While defendant’s consent to search and statements made were invalid, the search was pursuant to a valid warrant, and the product of the search is not suppressed. State v. Joaquin, 307 Ore. App. 314, 2020 Ore. App. LEXIS 1243 (Oct. … Continue reading
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):
OH8: Denial of cross-examination over affidavit for SW was harmless here
Officer’s statement in affidavit was assumed to be subject to cross-examination for impeachment purposes, but it was harmless error here. State v. Butts, 2020-Ohio-5011, 2020 Ohio App. LEXIS 3843 (8th Dist. Oct. 22, 2020).* [Note: a new § 60.57 on … Continue reading
CA6: Parole “stalking horse” rationale likely no longer good law; question is whether state parole law allowed the search
The probation and parole search “stalking horse” rationale probably is no longer good law. Defendant here was a person of interest in a homicide, and the police got his parole officer to conduct a search which was valid under state … Continue reading
CA9: Advancing on a prior victim with a knife resulted in a police shooting, and QI applied
“The district court found that no controlling precedent had clearly established that Omar’s right under the Fourth Amendment to be free from the excessive use of deadly force by police would be violated when he was shot and killed as … Continue reading
M.D.Fla.: IAC for failure to investigate 4A claim fails for lack of merit on search claim
“Johnson challenges his counsel’s investigation of the charged crime and his counsel’s failure to investigate the officer involved in the search warrant, surveillance, and collection of evidence. An allegation of ‘inadequate investigation does not warrant habeas relief absent a proffer … Continue reading
Cal.4th: Google turning over CP to NCMEC was private search
Google found child pornography in emails and submitted them to NCMEC. This was a private search (which is explained in detail). It is no different than the search in Jacobsen. People v. Wilson, 2020 Cal. App. LEXIS 976 (4th Dist. … Continue reading
CA9: Tight handcuffing can be excessive force, but this wasn’t
Tight handcuffing can be excessive force. Here, plaintiff complained, and they were loosened. He had only a slight bruise. That’s normal, and summary judgment was properly granted against that claim. Reyes v. City of Santa Ana, 2020 U.S. App. LEXIS … Continue reading
NY: Ex ante DNA warrant process didn’t challenge PC and it was otherwise reasonable
In New York, a search warrant for corporeal evidence allows the target to contest the probable cause before issuance and execution of the warrant on reasonableness and probable cause. Here, defendant didn’t challenge the probable cause, and the warrant could … Continue reading