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Recent Posts
- D.Mont.: 30-day delay in getting SW for seized storage building not unreasonable
- E.D.Cal.: Smell of MJ still PC in a California National Park even though not under state law
- CA10 dissent: Bivens on its last legs
- VA: Consent to look in backpack permitted search of pill bottle
- NY3: Warrantless arrest body cavity search was unreasonable
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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)
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Monthly Archives: October 2021
W.D.Ky.: Tracking def’s cell phone for weeks with an order issued on PC to find him wasn’t unreasonable
A tracking order was issued on probable cause to locate defendant after available public sources didn’t locate him. He argues for a “less intrusive means” type test, which it isn’t called, but the argument fails because the government tried that. … Continue reading
WaPo: I found my stolen Honda Civic using a Bluetooth tracker. It’s the latest controversial weapon against theft.
WaPo: I found my stolen Honda Civic using a Bluetooth tracker. It’s the latest controversial weapon against theft. (“AirTags and other Bluetooth trackers can find stolen cars, bikes and bags. But what happens when you find the person who took … Continue reading
M.D.Ga.: Def had standing at the address he gave his PO
Defendant listed the address searched with his PO. That gives him standing. Probation had reasonable suspicion for the search of that place. United States v. Shearry, 2021 U.S. Dist. LEXIS 204764 (M.D.Ga. Oct. 25, 2021). Defendant was a frequent visitor … Continue reading
CA5: Five day delay and rerouting of package for search was reasonable
United States Postal Inspection Service and Department of Homeland Security officers reasonably suspected the package coming to defendant contained contraband. There was difficulty locating the package in the “mail stream.” They finally got to it before delivery and had it … Continue reading
CO: These controlled buys were with PC; they could have been “more pristine” but they were adequate
The trial court erred in suppressing the search warrant here because it speculated on things not in the record. The warrant was based on two controlled buys that recounted the CI’s information, the police investigation to corroborate what they could, … Continue reading
OH12: Smell of burning MJ from a car is PC even in a MMJ state
“The smell of marijuana, alone, by a person qualified to recognize the odor, is sufficient to establish probable cause to conduct a search. … The odor of burnt marijuana was indicative of probable cause in this situation even though Caldwell … Continue reading
MA: PC and risk of destruction of evidence permitted warrantless entry into co-conspirator’s apartment after warning of raid created exigency
When police were executing a search warrant for evidence of identity theft and fraud, one of the co-conspirators called another in another apartment in the same building to say the police were on to them. That sufficiently raised fears of … Continue reading
E.D.Tenn.: When def claims material information is omitted from an affidavit for SW it becomes a Franks claim even if def doesn’t want it to be
Defendant’s claim that material evidence was omitted from the affidavit for this search warrant is, at bottom, a Franks claim that requires an offer of proof and a substantial preliminary showing it would change the probable cause determination. He failed … Continue reading
C.D.Ill.: Entry onto def’s curtilage to investigate his weapon possession broadcast live on SnapChat was with RS and reasonable
Officers were regularly monitoring defendant’s SnapChat account and saw him in real time with a gun. He was a convicted felon. “The officers decided to go to the Residence to detain Banks on his porch to investigate whether he had … Continue reading
S.D.W.Va.: Def’s merely talking to an alleged shooter wasn’t RS
Defendant’s merely talking to an alleged shooter before his interaction with the police was not reasonable suspicion he was armed and dangerous. “The totality of the circumstances here does not support a reasonable suspicion that Defendant was armed and dangerous … Continue reading
WaPo: License plate scanners were supposed to bring peace of mind. Instead they tore the neighborhood apart.
WaPo: License plate scanners were supposed to bring peace of mind. Instead they tore the neighborhood apart. By Drew Harwell:
CA9: Def’s lawful possession of this vehicle gave him standing
Defendant showed standing in the vehicle searched under Byrd because he lawfully possessed it at the time of the search. United States v. Glarner, 2021 U.S. App. LEXIS 31706 (9th Cir. Oct. 21, 2021). The affidavit for the search warrant … Continue reading
D.Minn.: Merely unlocking cell phone without looking in it is not a search
“[U]sing a passcode to unlock Defendant’s cellphone without exploring the contents of the phone does not constitute a search under the Fourth Amendment.” United States v. Jackson, 2021 U.S. Dist. LEXIS 202192 (D.Minn. Oct. 20, 2021). The protective sweep was … Continue reading
IN: Privilege against self-incrimination is not self-executing as to cell phone password disclosure
Defendant’s mid-trial motion to suppress a cell phone search was waived: It was not timely, and defendant consented to giving the passcode and gave consent to search it. The privilege against self-incrimination is not self-executing here. Kerner v. State, 2021 … Continue reading
CA7: Parole search of cell phone doesn’t require SW
Riley doesn’t require a search warrant for a parole search of a cell phone. The arrest was for drugs and the cell phone search found child pornography, and it is not suppressed. United States v. Wood, 2021 U.S. App. LEXIS … Continue reading
CA1: Stopping def’s vehicle by heading into it was a seizure, and here it was with PC
Defendant’s vehicle “containment” where police stopped him by coming front bumper to bumper was a seizure under Brower v. County of Inyo. He attempted to flee by backing into other police cars and a civilian’s car. The seizure was with … Continue reading
The Lens: Neighborhoods Watched
The Lens: Neighborhoods Watched, Project by Michael Isaac Stein, Caroline Sinders and Winnie Yoe (“New Orleans has spent millions to expand its police surveillance powers in recent years, providing the city with an unprecedented ability to monitor public spaces and … Continue reading
OR: When defense raises lack of oath or affirmation for SW, burden is on state to prove SW was properly issued
When the defense challenges the validity of the warrant for lack of oath or affirmation, that’s tantamount to a warrantless search allegation, so the court concludes the burden should be on the state to go forward. State v. Perrodin, 315 … Continue reading
Axios: Survey: Philly’s civil forfeiture program targeted Black residents
Axios: Survey: Philly’s civil forfeiture program targeted Black residents by Mike D’Onofrio (“A new survey sheds light on how Philadelphia’s civil asset forfeiture program disproportionately targeted Black residents before it was reformed three years ago.”)