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Recent Posts
- MO: Initial bail setting under Gerstein not adversarial
- D.Alaska: Protective sweep after def’s arrest not justified, but there was exigency otherwise
- D.Colo.: Four day delay in getting SW for seized car wasn’t unreasonable
- FL3: Cell phone dump in civil case denied; no showing of need
- E.D.Va.: Must plead prejudice when delay of a cell phone SW is alleged
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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)
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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)
Website design by Wally Waller, Little Rock 
Monthly Archives: May 2021
Inside Hook: Amazon’s Ring Is Basically a Giant Civilian Surveillance Network
Inside Hook: Amazon’s Ring Is Basically a Giant Civilian Surveillance Network by Kirk Miller (“After partnering with almost 2,000 police departments, is this home security product a threat to democracy?”)
S.D.Ohio: Govt doesn’t overcome right of access to seek to seal SW materials
The defense moved for access to search warrant materials for a potential motion to suppress. The government moved to seal them. The government’s motion is denied. There is generally a right of access in search warrant materials by the defendant … Continue reading
CA3: SW including “any and all cell phones” could be overbroad, but not here where there were only two
“Taylor contends that the description of ‘any and all cellular telephones’ contained in this warrant is overly broad and thus lacks the requisite particularity. Although a warrant allowing seizure of ‘any and all cellular telephones’ may be overbroad, this record … Continue reading
S.D.Fla.: Suppression motion issue selection is strategic choice under Strickland
“[C]ounsel was not ineffective as it relates to the search warrants at issue because counsel filed motions to suppress raising multiple arguments, and Movant failed to show that counsel’s strategic choice to pursue certain arguments over others—such as the Fourth … Continue reading
KS: Officer’s two calls to dispatch telling him there was a warrant was reasonable under Herring
Defendant’s arrest based on the officer’s two calls to dispatch insisting there was a warrant for defendant was reasonable reliance on a mistake of another under Herring. State v. Gilliland, 2021 Kan. App. LEXIS 21 (May 14, 2021). The French … Continue reading
WA: Unverified belief in existence of arrest warrant required suppression
Unverified belief there was an arrest warrant for defendant required that the arrest and search be suppressed. State v. Pines, 2021 Wash. App. LEXIS 1223 (May 17, 2021). “Here, while the record is unclear as to when the outstanding warrant … Continue reading
S.D.Ohio: PC to arrest doesn’t equal PC to search the suspect’s house, but where do people normally hide things?
Explaining the competing interests in nexus is United States v. Reliford, 2021 U.S. Dist. LEXIS 93053 (S.D. Ohio May 17, 2021). Probable cause to arrest doesn’t equal probable cause to search the suspect’s house, but where do people normally hide … Continue reading
D.D.C.: Videos referred to in criminal complaints in Capitol Riot Cases presumptively public records
The videos referred to in criminal complaints in the Capitol Riot Cases are presumptively public records. In Re: Press and Public Access to Video Exhibits in the Capitol Riot Cases, Misc. Action No. 21-46 (BAH) (D.D.C. May 14, 2021). A … Continue reading
CA11: Adding in the omitted information still showed PC
“Detective Tuck’s affidavit omitted some information favorable to Martelli, but even if we assume that those omissions were intentional or reckless, the claim still fails. It fails because, even including all the omitted information, a reasonable officer in Tuck’s position … Continue reading
LA5: Use of a flashlight on a car is still a plain view
Using a flashlight to look in a car was still a valid plain view. State v. Williams, 2021 La. App. LEXIS 767 (La. App. 5 Cir. May 13, 2021). Where the alleged OWI offender was incapacitated, Mitchell applies to his … Continue reading
WaPo: Amazon extends ban on police use of its facial recognition technology indefinitely
WaPo: Amazon extends ban on police use of its facial recognition technology indefinitely by Drew Harwell (“The tech giant said in June its freeze would last a year to ‘give Congress enough time to implement appropriate rules.’ No federal laws … Continue reading
CA7: FBI’s enlisting govt employee to take records from another’s office was unreasonable search
A government employee, like a private employee, has a reasonable expectation of privacy in his or her office. A co-worker at the insistence of the FBI gathered evidence from defendant’s office and violated the Fourth Amendment. But for these illegal … Continue reading
E.D.N.C.: Window tint violations always require a stop
Window tint violations require a stop to verify. “But the Supreme Court has said that ‘[t]o be reasonable is not to be perfect, and so the Fourth Amendment allows for some mistakes on the part of government officials, giving them … Continue reading
E.D.Tenn.: Omissions in Franks claims carry a higher burden
“Because defendant’s [Franks] claim relates to an alleged omission, he bears a heavy burden, as a Franks hearing is rarely merited in the case of an omission of exculpatory information. See Graham, 275 F.3d at 506. The Court does not … Continue reading
SCOTUS: Community caretaking function didn’t permit entry into unoccupied home to secure firearms when occupant left at request of police
The community caretaking function didn’t permit a warrantless entry into defendant’s home to secure his firearms after he left the home without them to get psychiatric help. He also asked that his guns not be seized when he left the … Continue reading
S.D.Tex.: Inevitable discovery applied to warrantless search of cell phone at immigration checkpoint
The fact the officers would have obtained a search warrant for defendant’s cell phone if one was sought here made the question of consent to search it moot. Inevitable discovery applies. This was at an immigration checkpoint. United States v. … Continue reading
D.N.J.: “Friends with benefits” relationship showed standing
Defendant with a “friends with benefits” relationship with his host still had standing during his short-term stays. Here, he was asleep in his underwear when the police entered at night. United States v. Brantley, 2021 U.S. Dist. LEXIS 91340 (D. … Continue reading
techdirt: FISA Court Says FBI May Be Abusing Surveillance Powers; Will Continue To Allow It To Abuse Surveillance Powers
techdirt: FISA Court Says FBI May Be Abusing Surveillance Powers; Will Continue To Allow It To Abuse Surveillance Powers by Tim Cushing (“Reform efforts following the Snowden leaks led to some minor improvements at the FISA Court. The USA Freedom … Continue reading
The Crime Report: Continued Use of “Terry Stops” Raise Concerns of Racial Profiling and Trauma
The Crime Report: Continued Use of “Terry Stops” Raise Concerns of Racial Profiling and Trauma (“The frequently used stopping practice has garnered attention from reform advocates who insist it relies on racial profiling.”).