Archives
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Recent Posts
- DC: Accepting a law license is consent to trust account subpoenas
- 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
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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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Section 1983 Blog -
"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: November 2020
AR: Commercial cop show video of search wasn’t in hands of state for discovery
Video of a drug search by a company producing HBO’s Meth Storm wasn’t in the hands of the state, so the state couldn’t disclose it, following Harmon v. State, 2020 Ark. 217, 600 S.W.3d 586 (2020). King v. State, 2020 … Continue reading
Tex.: Mere Miranda violation doesn’t automatically lead to suppression of physical evidence
A Miranda violation doesn’t automatically lead to suppression of physical evidence. The question is involuntariness and actual coercion, and then it could be. Wells v. State, 2020 Tex. Crim. App. LEXIS 944 (Nov. 18, 2020):
D.Nev.: Walking into a Walmart in NV 5½ months after the El Paso Walmart shooting potentially armed with a shotgun was RS
A 911 call that defendant was potentially armed with a shotgun coming into a Walmart in Sparks NV, 5½ months after the El Paso Walmart shooting that killed 23 and injured 23 led to defendant’s stop and frisk. This was … Continue reading
Vallejo Times Herald: Use and privacy policy for VPD’s ‘Stingray’ technology gets unanimous approval from council
Vallejo Times Herald: Use and privacy policy for VPD’s ‘Stingray’ technology gets unanimous approval from council by Katy St. Clair:
CT: State failed to prove proximity to premises under Summer and Bailey
The state at first didn’t rely on Summers and Bailey for proximity to the place searched for detaining and searching defendant. The trial court suggested it. Then they didn’t prove sufficient proximity to justify the stop. State v. Rolon, 2020 … Continue reading
CA5: RS for stop and frisk was lacking based on clothing and location
Defendant’s patdown on the street in San Antonio lacked reasonable suspicion that his clothing suggested gang activity or the place was high crime. The firearm found on him is suppressed. The body camera evidence was used by the defense. The … Continue reading
CA5: Def’s contesting authenticity of jail calls let the govt establish they came from jail
Not a search claim: Admission of jail telephone calls didn’t undermine the presumption of innocence. Defendant wouldn’t stipulate to authenticity so the government had to establish the source of the calls. United States v. Arayatanon, 2020 U.S. App. LEXIS 35922 … Continue reading
N.D.Ohio: Controlled buys leading to a SW doesn’t require open discovery of everything with the buys
Controlled buys leading to a search warrant don’t enable the defense to get discovery on nearly everything underlying the controlled buys. United States v. Arnold, 2020 U.S. Dist. LEXIS 213800 (N.D. Ohio Nov. 12, 2020):
N.D.Ohio: Arrest during mayor’s civil unrest proclamation was unreasonable, and vehicle plain view suppressed
Defendant’s arrest under the Cleveland Mayor’s civil unrest proclamation was unreasonable, and the plain view was a result of the illegal arrest. United States v. Long, 2020 U.S. Dist. LEXIS 213676 (N.D. Ohio Nov. 16, 2020). Petitioner generally claimed the … Continue reading
FL1: No REP in GPS installed in car def borrowed from a friend
Defendant had taken a car from a friend, and the car had a GPS installed by agreement between the owner and the finance company. The car owner didn’t know whether it had been stolen, and reported it to the police. … Continue reading
MA: Apt building hallway near apt was neither a constitutionally protected area nor curtilage
The hallway near defendant’s apartment in a multi-unit apartment building was not a constitutionally protected area nor within the apartment’s curtilage. Defense counsel wasn’t ineffective for not moving to suppress his arrest and search in the common area. Commonwealth v. … Continue reading
WV: Officer’s subjective belief in his ability to arrest DUIs statewide was unreasonable under Heien
“However, Heien does offer some insight into the type of ‘mistake’ which may provide relief-the area upon which the circuit court below focused. The Court concluded that ‘[t]he Fourth Amendment tolerates only reasonable mistakes, and those mistakes-whether of fact or … Continue reading
S.D.N.Y.: Mental health detentions don’t require actual showing of dangerous behavior; probability enough
A mental health detention “requires only a ‘probability or substantial chance’ of dangerous behavior, not an actual showing of such behavior.’” … Probable cause for involuntary hospitalization may be established from ‘information gleaned from informants[,] … normally the putative victim … Continue reading
D.Del.: Def found on couch in morning with pillow and sheet at friend’s house had standing
“Defendant has adequately demonstrated he has standing to challenge the Search Warrant. … Defendant was found at his brother’s residence around 9:31 a.m., lying on a couch with a sheet and pillow, strongly suggesting that he was an overnight guest … Continue reading
CAAF: GFE doesn’t apply to SW wholly without PC
The service member was charged with child pornography offenses. “Appellant moved for an order in limine suppressing all evidence that the Government had found in Appellant’s home pursuant to a command authorization for search and seizure (CASS). The military judge … Continue reading
S.D.N.Y.: “Unconscionable breakdown” in SW litigation process can state habeas claim, but petitioner doesn’t plead or show one
“Petitioner does not argue that he was not provided a correct procedure to redress his Fourth Amendment claim. And indeed, there is no basis for such an argument, as the Second Circuit has indicated that New York’s procedure for litigating … Continue reading
OH6: File stamp time error on SW wasn’t subject to exclusionary rule
The file stamp on a search warrant was before the judge signed it. This, however, is just a clerical error, and that doesn’t void an otherwise valid warrant. The exclusionary rule shouldn’t apply to such errors. “The testimonial evidence was … Continue reading
CA4: Govt didn’t have requisite cause to enter home of another on an arrest warrant for def
A fascinating Payon / Steagald case: The police here lacked probable cause or even a lower standard of information [the court considering the slightly differing views of the circuits] to believe that defendant lived where they entered. The government here … Continue reading