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Recent Posts
- W.D.Ark.: Parole search waiver moots lack of PC argument
- AR: RS shown for boating while intoxicated stop
- W.D.Mo.: Wrong address in SW wasn’t fatal where right house was searched
- NY: Failure to show independent source for officer’s observation of def required reversal
- VA: Outline of a gun in def’s pocket was RS
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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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"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: August 2021
CA10: Order to get out of car doesn’t unreasonably extend stop
The officer’s order for defendant to get out of the car was reasonable and did not unreasonably prolong the stop. United States v. Malone, 2021 U.S. App. LEXIS 26136 (10th Cir. Aug. 30, 2021). “While Fisk brings his assignment of … Continue reading
CA11: Govt filter team for review of seized materials not per se unreasonable; stringent protocol followed
The use of a government filter time to review seized materials implicating the attorney-client privilege is not per se unreasonable. The USMJ ordered compliance with a more stringent protocol than approved in other cases. Injunction denied. In re Sealed Search … Continue reading
IL: Def’s personal relationship to premises to be searched is relevant and has to be viewed in the context of the totality
Nexus for the premises was shown in the search warrant affidavit. Defendant’s personal relationship to the premises is relevant and has to be evaluated in context of the totality. On sufficiency of the evidence, however, defendant’s conviction is reversed for … Continue reading
NYT: When Police Lie, the Innocent Pay. Some Are Fighting Back.
NYT: When Police Lie, the Innocent Pay. Some Are Fighting Back. (“Video from body cameras, doorbells and cellphones is revealing discrepancies between what police officers report and what actually happened.”)
SC authorizes video or phone oath and presentation of SW affidavits
Remote communication technology has been used for court proceedings under Covid. It is expressly authorized for many other proceedings, including issuance of search warrants. The swearing of the affiant can be remote. Use of Remote Communications Technology, 2021 S.C. LEXIS … Continue reading
S.D.N.Y.: Search of DOC employee’s papers for drug soaked paper on entering prison was reasonable
Search of a NYC DOC employee’s belongings for drug soaked paper after passing the metal detector at Riker’s Island was reasonable either under special needs or because there is no reasonable expectation of privacy and it’s not even a Fourth … Continue reading
CA10: Changing argument on a Carpenter remand is waiver
Defendant was the subject of a pre-Carpenter CSLI production, and his case was GVR’ed in light of Carpenter. On remand in the District Court he raised a new issue which the court finds waived. “We conclude that the district court … Continue reading
OH1: Years-old information of trafficking with current info of personal use isn’t PC for trafficking
Where the officer’s affidavit consisted only of years-old stale information and present evidence of personal drug use, there was no probable cause to search the defendant’s residence for evidence of drug trafficking, and the trial court erred in applying the … Continue reading
CA9: Supervised release electronic search condition not shown to have nexus to purposes of SR
“We nevertheless vacate the suspicionless search condition because the district court ordered suspicionless searches of Leonard’s ‘electronic devices and their data, including cell phones, computers, and electronic storage media’ without making ‘a properly supported factual finding’ that ‘establish[es] some nexus … Continue reading
CA7: Consulting ADA about SW affidavit shows GF where PC question somewhat close
“An objectively reasonable officer, having consulted with the State’s Attorney in the preparation of the complaint and affidavit accompanying the application for the warrant, could have relied in good faith on the search warrant that he obtained from a judge. … Continue reading
NY (Kings Co.): SW for cell phone failed to show nexus to the crime
“As such, the People failed to establish a nexus, supported by probable cause, that the cell phone recovered was the cell phone used at the time they allege the defendant committed the charged crimes and therefore cannot satisfy the required … Continue reading
NY4: Smell of PCP alone is PC
“New York is no outlier on this issue. Indeed, as far as we can discern, every single court in the United States to ever consider this precise issue has come to the same conclusion as Darby and Sanchez: a trained … Continue reading
Wired: An Explosion in Geofence Warrants Threatens Privacy Across the US
Wired: An Explosion in Geofence Warrants Threatens Privacy Across the US by Sidney Fussell (“New figures from Google show a tenfold increase in the requests from law enforcement, which target anyone who happened to be in a given location at … Continue reading
N.D.Cal.: Officer accessing Automated License Plate Reader database not unreasonable search
An Oakland officer’s accessing the local Automated License Plate Reader (ALPR) database was not an illegal search nor a violation of the Fourth Amendment. That information helped to provide information to enable police to apply for a GPS tracking warrant … Continue reading
9to5Mac: Apple’s Find My app leads police to arrest suspect after searching for lost iPhone
9to5Mac: Apple’s Find My app leads police to arrest suspect after searching for lost iPhone by Filipe Espósito. (Using the Find My app of the officer’s phone, “The police then succeeded in arresting Sandoval after tracking him for about an … Continue reading
Reason: Cops Are Dressing Up Like FedEx Guys and Arresting People for Drugs
Reason: Cops Are Dressing Up Like FedEx Guys and Arresting People for Drugs (“A little-known agreement allows police officers to seize packages at FedEx sorting centers.”) Actually, the writer was surprised to learn this has been going on for decades. … Continue reading