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- E.D.N.C.: Search incident of bag of handcuffed suspect surrounded by six officers was unreasonable
- TX12: Texas livestock officer lacked general law enforcement powers
- S.D.Ill.: Code enforcement officer’s entry to construction site to stop work was not a “search”
- Ammoland: NYC Weapon Sensing Tech Fails, Investigations into Misconduct
- LA Times: L.A. man wearing GPS ankle monitor is accused of a robbery spree. Officials can’t track him
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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 (27,400+ on WordPress as of 7/23/24) -
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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 2023
NYT: Cars Seized by Police Get Supreme Court Scrutiny in Civil Forfeiture Case
NYT: Cars Seized by Police Get Supreme Court Scrutiny in Civil Forfeiture Case by Adam Liptak (“Several justices seemed wary of allowing law enforcement officials to take vehicles used to commit crimes when their owners were not at fault.”) This … Continue reading
techdirt: Don’t Want To Be Part Of A Geofence Warrant Line-Up? You Have Options.
techdirt: Don’t Want To Be Part Of A Geofence Warrant Line-Up? You Have Options. by Tim Cushing (“Shira Ovide’s article for the Washington Post first details everything that’s extremely questionable about law enforcement’s reliance on geofence warrants. In a typical … Continue reading
N.D.Ohio: Nexus shown by car involved in controlled buys parked at def’s house
Defendant drove his vehicle to multiple controlled buys. The vehicle was usually parked at his home. That’s nexus. United States v. Brooks, 2023 U.S. Dist. LEXIS 193635 (N.D. Ohio Oct. 30, 2023). This child pornography affidavit for search warrant didn’t … Continue reading
CA4: No absolute immunity for a judge involved in search of ex’s property over their divorce
“We consider in this appeal whether a judge who participates in the search of a litigant’s home is entitled to judicial immunity for actions related to the search. Judge Louise Goldston went to Matthew Gibson’s residence to look for items … Continue reading
W.D.Ky.: Protective sweep unjustified on facts; rural area not enough
The protective sweep here wasn’t justified by any current facts justifying it. The government first relied on it being a rural area, but that’s rejected because it would render most of the country a zone where protective sweeps could always … Continue reading
CA11: SW for iCloud account from before crime even occurred sustained on good faith
Defendant’s cell phone was used to arrange a robbery. A search warrant was also obtained for defendant’s backup iCloud account before the robbery even occurred, and there was no probable cause for that. Yet, the Eleventh Circuit [some would say … Continue reading
N.D.Ohio: Just because legal conduct is mentioned in the SW affidavit does not mean it lacks PC otherwise shown
The inclusion of legal conduct in the affidavit for search warrant doesn’t make the warrant lack probable cause. There’s sufficient information otherwise. United States v. Reebel, 2023 U.S. Dist. LEXIS 192048 (N.D. Ohio Oct. 26, 2023). Defendant is accused of … Continue reading
IN: State could rely on alternative theory on appeal where record supports it
The state relied on inventory at trial and prevailed. On appeal it also relies on search incident. The record developed supports that, too. Cobb v. State, 2023 Ind. App. LEXIS 299 (Oct. 26, 2023). [In my state, it’s “right result, … Continue reading
D.Minn.: Non-authorized driver of rental car four hours late to return had no standing
Defendant was stopped driving a rental car four hours after the rental expired and he was not an authorized driver. He doesn’t show standing. United States v. Maiden, 2023 U.S. Dist. LEXIS 192555 (D. Minn. Sep. 5, 2023), adopted 2023 … Continue reading
D.Neb.: Open container violation justifies a search of the passenger compartment
An open container violation justifies a search of the passenger compartment. United States v. Smith, 2023 U.S. Dist. LEXIS 192108 (D. Neb. Oct. 24, 2023). The warrant affidavit’s discussion of the silver truck was a reasonable inference and not a … Continue reading
N.D.N.Y.: No REP in def’s social media accounts holding child porn
In a child porn case, defendant can’t show a reasonable expectation of privacy in images in his social media account. “For example, Defendant has not attested as to how he used the social media accounts, what if any privacy settings … Continue reading
NY3: Motion to suppress is an adequate remedy at law, not a writ of prohibition
Defendant sought prohibition to prevent his prosecution because of an illegal search. He has an adequate remedy in a motion to suppress. Denied. Matter of Rodriguez v. Hobbs, 2023 NY Slip Op 05433,2023 N.Y. App. Div. LEXIS 5399 (3d Dept. … Continue reading
N.D.Ala.: 4A does not require gun seen in protective sweep be immediately seized; SW was obtained
If officers saw defendant’s .22 during a protective sweep, the Fourth Amendment doesn’t require that it be seized immediately. It can be seized during execution of the later issued search warrant. A .22 is not a weapon of choice for … Continue reading
Reason: Government Misuse of Data Rightly Worries Americans
Reason: Government Misuse of Data Rightly Worries Americans by J.D. Tuccille (“Federal agencies frequently buy their way around the Fourth Amendment.”) But not Congress.
D.D.C.: Telling def the SW for his phone required his passcode was unreasonable because it didn’t
Defendant was in U.S. diplomatic service in Mexico, and he was accused of sex with drugged women there. Proof was ultimately found on his phone with a search warrant on his return to the U.S. Officers returned to his hotel … Continue reading
N.D.Ind.: Def put drugs in a confederate’s car, and he had no standing despite being the target of the search
Defendant put drugs in bags in the car of a confederate in the crime. When the car was searched, he didn’t have standing, even though he was admittedly the target of the search and not in possession. United States v. … Continue reading
Real Clear Policy: Just the Facts on ‘Geofencing’
Real Clear Policy: Just the Facts on ‘Geofencing’ by Maggie MacFarland Phillips (“As worshippers gathered at the Calvary Chapel in 2020, they were being watched from above. [¶] Satellites were locking in on cell phones owned by members of the … Continue reading