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Recent Posts
- Lawfare: How Google’s Location History Program Could Upend Digital Surveillance Law
- CA6 disagrees with CA7 on de minimis injuries under § 1983 force cases
- MO: No duty of care owed by police to fleeing motorist
- D.P.R.: Indictment for possession of switches to convert handguns to machine guns justified vehicle search when defendant was stopped
- N.D.Ohio: Heroin and three guns in plain view was exigency for entry with child alone inside
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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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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)
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Monthly Archives: December 2022
SCOTUS orders SG response to pole camera cert. petition
Moore v. United States, 22-481 from SCOTUSBlog.Issue: Whether long-term police use of a surveillance camera targeted at a person’s home and curtilage is a Fourth Amendment search. The Solicitor General waived response Dec. 9. On Dec. 15, the government was … Continue reading
D.Nev.: Flight not RS, but in a high crime area it more likely is
Flight alone is not reasonable suspicion. Flight in a high crime area is more likely to be. United States v. Holmes, 2022 U.S. Dist. LEXIS 225855 (D. Nev. Dec. 14, 2022). “Determining the appellant’s identity was necessary to permit the … Continue reading
WaPo: Police thought his cash was suspicious. So they took it. And won’t give it back.
WaPo: Police thought his cash was suspicious. So they took it. And won’t give it back. by George F. Will:
NY Daily News: NYPD settles lawsuit over unconstitutional warrant checks
NY Daily News: NYPD settles lawsuit over unconstitutional warrant checks (“Conducting a warrant check on someone without sufficient cause violates a person’s fourth amendment rights, civil rights attorneys say.”) WaPo: NYPD ends tactic of prolonging stops to check for warrants … Continue reading
CA10: State SW issued for DNA in Indian country was still in good faith
A state search warrant for defendant’s DNA for an offense in Indian Country was relied upon in good faith, despite defendant’s contention the warrant was issued by an issuing authority outside the jurisdiction. McGirt doesn’t change this. United States v. … Continue reading
Cal.2: MJ smell associated with minors still RS for an offense
Officers ran an LPN and saw that the vehicle had expired tags. Driving next to the car, officers smelled burnt marijuana and knew that the users were minors which is still an offense under California law. That was cause for … Continue reading
AK: Exclusionary rule doesn’t apply to DV civil proceeding
The exclusionary rule does not apply in Domestic Violence Protective Order proceeding. Green v. State, 2022 Alas. LEXIS 140 (Dec. 14, 2022) (due process claim). Multiple calls between the CI and defendant arranging a fentanyl deal and defendant showing up … Continue reading
OH4: Once dog alerts, automobile exception arises, and vehicle can be moved for search
Once a drug dog alerted on defendant’s car, the automobile exception arose, and the search did not have to occur right away. The vehicle could be removed to another location for the search. State v. Harper, 2022-Ohio-4357, 2022 Ohio App. … Continue reading
CA6: Common law rule that misd must be in presence of officer for warrantless arrest not part of 4A
The common law rule of a misdemeanor offense needing to be in the presence of the officer to be a basis for an arrest is not considered part of the Fourth Amendment. “And our court has held that the offense … Continue reading
CA10: Traffic stop to flirt with a motorist violates clearly established law
A traffic stop to flirt with a motorist violates clearly established law. But this is a more complicated. “Ultimately, Plaintiff’s appeal rises and falls on the question of whether Defendant’s conduct violated clearly established law. To the degree that Defendant acted … Continue reading
W.D.Tenn.: Merely saying in SW affidavit drug dealers usually keep stuff at home isn’t nexus; but GFE applies anyway
Merely alleging in a search warrant application that drug dealers usually keep drugs at home does not satisfy the nexus requirement. It does, however, satisfy the good faith exception. Motion to suppress denied. United States v. Neal, 2022 U.S. Dist. … Continue reading
CA3: Scope of curtilage argument changed on appeal and thus waived
This case involved an argument about what is curtilage around a tent and firepit. Explosives were found outside this curtilage. On appeal, the scope of curtilage changed, and it’s waived. United States v. Madziarek, 2022 U.S. App. LEXIS 34076 (3d … Continue reading
CA5: Dog sniff of the person at the border does not require RS
A dog sniff of defendant’s person at the border did not require reasonable suspicion. United States v. Tenorio, 2022 U.S. App. LEXIS 33978 (5th Cir. Dec. 9, 2022). The credibility determinations on whether defendant was subjected to arrest or not … Continue reading
WI: A description of a Harley in Wisconsin in April is generic and not RS
The description of the offending vehicle as a Harley in Wisconsin is so generic it can’t support a stop. “After all, Wisconsin is the home of Harley-Davidson, and it is one of, if not the most popular manufacturers of motorcycles … Continue reading
S.D.Cal.: Release condition with firearm restriction and search waiver did not violate 2A or 4A
Defendant’s release condition of a firearm restriction and Fourth Amendment waiver because of a prior misdemeanor firearms conviction doesn’t violate the Second Amendment under New York State Rifle & Pistol Association, Inc. v. Bruen (2022). Heller supports the court’s conclusion. … Continue reading
CA9: Private search of CSLI made it admissible in admin proceeding
The Washington State Department of Labor and Industries received information from whistleblowers of cell site location information the defendant business collected to show alleged violations of state law. This was a private search, and Carpenter is not implicated. Kleiser v. … Continue reading
E.D.Wis.: Being a corporate official alone doesn’t confer standing
Defendants are corporate officials of a business that was searched. That fact alone doesn’t give them standing, and the motion papers don’t really help. This is a search under a warrant, and the defendants carry the burden on standing and … Continue reading