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- MA: Cell phone call logs don’t require a search warrant
- D.Kan.: Drug dog touching car door handle with nose isn’t unreasonable search
- D.N.M.: DEA’s failure to make a detailed inventory in violation of policy doesn’t require exclusion of evidence
- WaPo: These cities bar facial recognition tech. Police still found ways to access it.
- C.D.Cal.: SW materials in case with weighty public interest ordered unsealed
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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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--Federal Statutes Governing Wiretapping and Electronic Eavesdropping (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)
Website design by Wally Waller, Little Rock 
Monthly Archives: December 2021
OH6: No standing in a package stopped in transit where def’s name not anywhere on it
Defendant lacked standing to contest the detention of a package in transit in the Post Office because he was neither shown as the addressee nor the recipient. Even so, there was reasonable suspicion to detain the package. The dog sniff … Continue reading
D.Kan.: § 1983 case over bad faith prosecution and search of cell phone barred by Younger
Plaintiff sued under § 1983 claiming that his prosecution is proceeding in bad faith and that his cell phone was wrongfully seized and searched. This is all barred by Younger v. Harris. Kabutu v. Short, 2021 U.S. Dist. LEXIS 238360 … Continue reading
CA6: Officer routinely asking “about drugs, weapons, and dead bodies” during traffic stops doesn’t unreasonably extend them
Officer “Mathieson testified that it is his habit to ask about drugs, weapons, and dead bodies during traffic stops. In any event, police officers are permitted to stop a vehicle for a traffic violation and look for evidence of a … Continue reading
CA6: 2254 petitioner’s argument state court “did not squarely address” his 4A argument still barred by Stone
“Tippins does not dispute that the state courts provided him a mechanism by which to present his Fourth Amendment claim. He instead argues that because the state courts did not squarely address the cases he raised on direct appeal, Powell … Continue reading
Vice: Prison Phone Companies Are Recording Attorney-Client Calls Across the US
Vice: Prison Phone Companies Are Recording Attorney-Client Calls Across the US (“Lawyers say their conversations with incarcerated people are being recorded and analyzed by private companies in at least nine US states.”)
CA11: Ptf had no REP in workplace computer, even with personal iPhone backed up on it
Plaintiff had no reasonable expectation of privacy in her workplace computer from a search by the employer during an audit of her time off related to a second job instigated after a discrimination complaint. The fact she backed her iPhone … Continue reading
CA9: That CI could be accountable for falsity supports veracity
“Considering the totality of circumstances, the search warrant affidavit established probable cause that evidence or contraband would be found at Conard’s residence. The affidavit supplied sufficient indicia that the first confidential informant (‘CI 1′) was reliable. To begin, CI 1 … Continue reading
TX2: Unlawful stop-and-frisk leads to suppression of patdown and search and abandonment during flight
Defendant’s stop was without reasonable suspicion. His alleged consent was not voluntary and his flight and abandonment were not attenuated but were caused by the illegal stop and frisk. Massey v. State, 2021 Tex. App. LEXIS 9820 (Tex. App. – … Continue reading
CA2: SW for premises was particular despite claim part of it was multifamily
The search warrant application didn’t mention that the premises was actually a multifamily dwelling. It appeared not to be, and the IP information for a child pornography search warrant came back to that address as a whole. “Regardless of whether … Continue reading
ND: A prima facie showing of an illegal search or seizure shifts burden to state to justify
“If a defendant makes a prima facie showing of an illegal search or seizure, the burden shifts to the government to show an exception applies.” Here there was no seizure until the officer took defendant’s keys and turned off his … Continue reading
W.D.N.Y.: For Stone, the federal courts don’t second-guess the state court’s 4A decisions
“While those facts do not necessarily compel the conclusion that the warrantless search of the garbage tote was justified by the emergency exception, that is not the question before me. As stated, it is not this Court’s function to second-guess … Continue reading
IN: There is no immigration exception to the 4A
There is no immigration exception to the Fourth Amendment. The City can conclude that immigration administrative detainers violate the Fourth Amendment. City of Gary v. Nicholson, 2021 Ind. App. LEXIS 381 (Dec. 10, 2021):
OH2: Citizen informant provided RS
Officers received a disorderly conduct call at a fitness center. When officers arrived, defendant was pointed out, and the officers detained him. They hadn’t seen anything illegal at that point, but the employee’s call as a citizen informant was enough … Continue reading
E.D.Mich.: When SW arrived for house, def’s vehicle parked two doors down could be searched with PC under automobile exception
Officers had a search warrant for defendant’s house that included vehicles that were parked or came there. Defendant’s vehicle was parked two houses down from his house. The search of the vehicle was justified by the automobile exception. United States … Continue reading
CA6: Looking under bed in a protective sweep still was plain view
The officer had to kneel down to look under defendant’s bed in a protective sweep, and he saw a gun. The gun was still in plain view, and the officer was legitimately in place. United States v. Fields, 2021 U.S. … Continue reading
TX10: Not challenging search when lack of knowledge was the issue for trial is reasonable strategy
In this post-conviction case, trial defense counsel wasn’t asked and didn’t provide an affidavit why he said “no objection” to admission of allegedly illegally seized evidence at trial. Without knowing why, it can’t be ineffective (it was argued it was … Continue reading
CA10 explains nondomestic FISA surveillance in easy detail
For a detailed explanation of nondomestic FISA activities and phone call surveillance, see United States v. Muhtorov, 2021 U.S. App. LEXIS 36170 (10th Cir. Dec. 8, 2021) (No warrant or court order is required to surveil foreign persons’ conversations outside … Continue reading
CA3: Coast Guard needs only RS to board a vessel to inspect the Oil Record Book about pollution
The Coast Guard had the authority under 14 U.S.C. § 522(a) to conduct a pollution inspection of defendant’s vessel and look at the Oil Record Book. “The Coast Guard’s preliminary examination of the Oil Record Book and Oily Water Separator … Continue reading
IL: Def’s stop and obtaining DL was permitted by Terry so alleged illegal arrest is moot point
Officers had sufficient information for a Terry stop. They arrested defendant and got his DL and identifiers. Even if the arrest was illegal, the Terry stop would not have been and the same information would have been available. Therefore, there … Continue reading
E.D.Mich.: Finding drugs on person during traffic custodial arrest permits vehicle search
Defendant’s stop was valid because the LPN was expired. While that proved to be untrue, the officer also learned early on the car was uninsured. With defendant arrested, the officer searched his person finding cocaine. That authorized a search of … Continue reading