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- E.D.Ky.: When court can’t tell the dog alerted, motion to suppress granted
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- D.Me.: Looking around house when allegedly “freezing” it was an illegal search
- OR: Police listening to attorney-client jail calls because attorney calls not properly segregated leads to dismissal of some counts and setting aside guilty plea
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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,
citations, and links -
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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: August 2021
CA6: Parking enforcement chalking not a valid administrative search but QI immunity applies
“The City of Saginaw routinely chalked car tires to enforce its parking regulations. In our prior opinion, we held that doing so is a search for Fourth Amendment purposes, and that ‘based on the pleadings stage of this litigation, … … Continue reading
CA8: 38 seconds of additional questions of passenger while ticket being written didn’t unreasonably extend stop
The second officer on the scene did not materially extend the stop by 38 seconds of additional questioning of the passenger while the first officer was writing a ticket. United States v. Salkil, 2021 U.S. App. LEXIS 25511 (8th Cir. … Continue reading
D.S.C.: Def can’t get discovery of all SW affidavits from officer for 2 1/2 years
Defendant does not get discovery of every search warrant affidavit over the last 2½ years prepared by the detective in this case. “Defendant has offered no justification for the request of all affidavits prepared by Detective Jackson over the last … Continue reading
ID: Def has burden of proving standing and can’t rely on state seeking to prove he didn’t have standing
Defendant had the burden of showing standing, and he couldn’t rely on the state not proving he didn’t have standing. Wilson v. State, 2021 Ind. App. LEXIS 264 (Aug. 24, 2021). Finding that defendant was on federal supervised release was … Continue reading
C.D.Ill.: Failure to execute state SW in 10 days doesn’t automatically trigger exclusionary rule
Failure to execute a state search warrant within 10 days (F.R.Crim.P. 41) where state law says 60 days does not automatically trigger the exclusionary rule. The affidavit for the warrant showed probable cause, and the good faith exception also applies. … Continue reading
N.D.Ohio: Smell of MJ on def’s person not PC to search his car
The officer had no suspicions of defendant before drawing his gun on him. The smell of marijuana on defendant’s person, but not his car, was not probable cause for a search of the car. The officer testified he was quite … Continue reading
EFF: Chicago Inspector General: Police Use ShotSpotter to Justify Illegal Stop-and-Frisks
EFF: Chicago Inspector General: Police Use ShotSpotter to Justify Illegal Stop-and-Frisks by Matthew Guariglia and Adam Schwartz (“[T]he OIG report finds a pattern of CPD officers detaining and frisking civilians—a dangerous and humiliating intrusion on bodily autonomy and freedom of … Continue reading
OH3: No REP in discarded cigarette butt connecting def to cold case
Defendant waived any reasonable expectation of privacy in a cigarette butt he through away where the police found his DNA. It was used to solve a cold case of rape and attempted murder from 1993. State v. Bortree, 2021-Ohio-2873, 2021 … Continue reading
E.D.N.Y.: Def already lawfully arrested suffered no separate 4A violation by being taken to ATF, too
Defendant already lawfully arrested wasn’t unreasonably seized by also taking him to ATF for further questioning. United States v. Rodriguez, 2021 U.S. Dist. LEXIS 158008 (E.D.N.Y. Aug. 20, 2021). The affidavit showed “ample probable cause” and the Franks challenge is … Continue reading
N.D.Ill.: No federal right to challenge administrative SW before execution
“[F]ederal decisions outside this circuit do not change the Court’s conclusion that Anthony Marano has no pre-execution right to judicial review of the administrative inspection warrant.” In re Establishment Inspection of Anthony Marano Co., 2021 U.S. Dist. LEXIS 157819 (N.D.Ill. … Continue reading
Cal.3d: DNA obtained from def’s arrest in another unprosecuted case could be used to link him to a prior murder
Defendant’s DNA obtained from an arrest with probable cause but where he wasn’t formally charged could be used to link him to a prior murder, relying on Maryland v. King. People v. Roberts, 2021 Cal. App. LEXIS 692 (3d Dist. … Continue reading
CA11 (en banc): Preponderance standard required for inevitable discovery
“We granted rehearing en banc in this case to decide what standard of proof the government must satisfy to show that the evidence would ultimately have been discovered through lawful means without the constitutional violation. Must it show there was … Continue reading
CA8: Some evidence of nexus saves SW under GFE
Under the good faith exception, executing officers are entitled to rely on the magistrate judge’s nexus finding with some actual basis they can reasonably rely on, even if it technically might have been wrong. United States v. Barnes, 2021 U.S. … Continue reading
DC: PO’s turning over supervisee’s GPS tracking to police not unreasonable
Defendant on probation in D.C. was supervised by the Court Supervision and Offender Services Agency. After he violated terms of probation, he was placed on GPS monitoring. It was not unreasonable for CSOSA to share that information with D.C. Metro … Continue reading
N.D.Ga.: Cell phone lock screen is in plain view
On a cell phone, “information that simply appears on a lock screen, without requiring digital entry, is in plain view.” United States v. Blair, 2021 U.S. Dist. LEXIS 156445 (N.D.Ga. Aug. 18, 2021). Defendant didn’t have a reasonable expectation of … Continue reading
ND: When video contradicts officer, trial court’s credibility determination isn’t binding
Where the video of the stop clearly contradicts the officer’s testimony on the basis for the stop, the appellate court can reject the trial court’s credibility finding. Here, it was whether defendant’s license plate light worked. The video showed it … Continue reading
CA7: Deadly force to a non-suspect civilian not resisting arrest can be unreasonable
“Viewing all of the facts in the light most favorable to the Plaintiff, we find that a reasonable jury could conclude that Garrett violated Steven’s Fourth Amendment right to be free from unreasonable seizures when Garrett applied deadly force to … Continue reading
WI: Checking traffic detainee’s compliance with prior bond conditions violated Rodriguez
Defendant was stopped for a traffic offense, and defendant was on bond from a pending case. The officer decided to inquire into defendant was in compliance with the bond terms. That exceeded the normal incidents of a traffic stop. State … Continue reading
WaPo: We built a system like Apple’s to flag child sexual abuse material — and concluded the tech was dangerous
WaPo: We built a system like Apple’s to flag child sexual abuse material — and concluded the tech was dangerous by Jonathan Mayer and Anunay Kulshrestha (“We wrote the only peer-reviewed publication on how to build a system like Apple’s … Continue reading