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Recent Posts
- 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
- CA: Avoiding the police in a high crime area isn’t RS
- CA7: Jail officials holding plaintiff under a valid court order aren’t liable for not releasing him sooner after a sentencing error
- Volokh: Do Fourth Amendment Protections Change When Property Is Moved?
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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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--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: June 2022
CA3: Not plain error to fail to exclude potential prejudicial testimony about risk of violence in execution of SW
Testimony about how a search warrant was executed as it was could have prejudiced defendant by revealing the government thought he was violent before arrest. It was not, however, plain error on this record without an objection. United States v. … Continue reading
D.Conn.: Handcuffing did not turn this stop into an arrest
Handcuffing did not turn this stop into an arrest. United States v. Walker, 2022 U.S. Dist. LEXIS 108170 (D.Conn. June 17, 2022).* Petitioner’s 2254 claim was based on ineffective assistance of counsel for waiver of his claim that he was … Continue reading
D.Ariz.: PC so lacking, “this is a no-brainer”
“The Court finds that the search warrant affidavit comes nowhere near to establishing probable cause for the search of the cell phone. Simply put, this is a no-brainer. In fact, the government’s conclusory argument noted above demonstrates the futility of … Continue reading
KY: REP in CSLI
There is a reasonable expectation of privacy in one’s CSLI. One can have a reasonable expectation of privacy in his or her movements on public roads. Commonwealth v. Reed, 2022 Ky. LEXIS 132 (June 16, 2022):
CA6: A police order to come out of one’s house is a seizure
“These cases clearly establish that forced compliance with orders is a Fourth Amendment seizure. Mendenhall and Saari establish that words that compel compliance with the officer’s orders to exit a house constitute a seizure. Thus, when taking the facts in … Continue reading
CA8: Shove was not a seizure
A mere shove was not a Fourth Amendment seizure nor excessive force. Martinez v. Sasse, 2022 U.S. App. LEXIS 16624 (8th Cir. June 16, 2022):
WI: Search incident for shoplifting permitted search of small canister on keychain
Defendant was arrested for shoplifting, and, on her arrest, a search incident of a small canister attached to her keychain was reasonable, despite it being so small no evidence of theft would be there. State v. Meisenhelder, 2022 Wisc. App. … Continue reading
WI: On remand in Mitchell v. Wisconsin blood draw reasonable
On remand from Mitchell v. Wisconsin, 139 S. Ct. 2525, 2539 (2019), defendant’s blood draw was reasonable. State v. Mitchell, 2022 Wisc. App. LEXIS 518 (June 15, 2022): When the Mitchell Court remanded this case, it did so for a … Continue reading
IA: Failure to articulate why state const. applies for different result is waiver
Failure to articulate one’s argument that the state constitution requires a different result is waiver. State v. Versteegh, 2022 Iowa App. LEXIS 434 (June 15, 2022). “Here, the issuing judge reasonably concluded, based on all of the circumstances, that there … Continue reading
E.D.Tex.: Whether RV was immobile and used as a residence doesn’t matter where GFE applies
“In his third numbered objection, Lee argues that contrary to Officer Kennedy’s testimony, the RV was completely immobile at the time it was searched and that it was being used as a residence. But whether the RV was mobile or … Continue reading
50th Anniversary of the Watergate break-in
50 years ago early this morning, the Watergate break-in occurred. And the rest is history. I was in the summer recess between being a 2L and 3L, probably already in summer classes. I studied for the bar exam to be … Continue reading
Volokh Conspiracy: Qualifying Qualified Immunity: The Cases in Which the Fair Notice Rationale Clearly Supports …
Reason: Volokh Conspiracy: Qualifying Qualified Immunity: The Cases in Which the Fair Notice Rationale Clearly Supports … (“and clearly does not support qualified immunity.”) by Nathan Chapman
ATL: Federal Judge Just Doesn’t Feel Like Reading The Fifth Circuit’s Cases
And here, the defendant won on the search issue: ATL: Federal Judge Just Doesn’t Feel Like Reading The Fifth Circuit’s Cases by Kathryn Rubino (“Is this the most relatable a federal judge has ever been?”) discussing United States v. McKinney, … Continue reading
CA9: Failure to deliver SW at scene of search violated Rule 41, but no suppression here
Failure to deliver the whole search warrant to defendant violated Rule 41(f)(1)(C), but it wasn’t deliberate so no suppression. United States v. Manaku, 2022 U.S. App. LEXIS 16337 (9th Cir. June 14, 2022). 2254 petitioner’s ineffective assistance of counsel for … Continue reading
NY Richmond Co.: PC without including protective sweep
“These facts alone, without taking the protective sweep into consideration, would have provided a magistrate with probable cause to issue a search warrant. A sworn statement of an identified member of the community attesting to facts directly and personally observed … Continue reading
OH7: Attached affidavit made SW particular
While the search warrant wasn’t particular, it incorporated the affidavit which was. State v. Bugno, 2022-Ohio-2008, 2022 Ohio App. LEXIS 1882 (7th Dist. June 9, 2022). The emergency aid exception applies: “[T]he presence of blood on the premises, coupled with … Continue reading