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- E.D.Ky.: When court can’t tell the dog alerted, motion to suppress granted
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- D.Me.: Looking around house when allegedly “freezing” it was an illegal search
- OR: Police listening to attorney-client jail calls because attorney calls not properly segregated leads to dismissal of some counts and setting aside guilty plea
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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,
citations, and links -
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Congressional Research Service:
--Electronic Communications Privacy Act (2012)
--Overview of the Electronic Communications Privacy Act (2012)
--Outline of Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012)
--Federal Statutes Governing Wiretapping and Electronic Eavesdropping (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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Category Archives: Prison and jail searches
OR: Police listening to attorney-client jail calls because attorney calls not properly segregated leads to dismissal of some counts and setting aside guilty plea
The jail computer controlled phone system did not properly block attorney-client telephone calls, and the police listened to defense counsel’s conversations with defendant in jail. The police then used that information to supersede the indictment. Prejudice is presumed. State v. … Continue reading
S.D.N.Y.: Ptf prisoner pled enough to survive motion to dismiss because of an unnecessary and potentially abusive strip search
Prison search case: “Plaintiff alleges that his clothes were ripped off during the assault, he was left naked on the floor with his boxers barely on, and the C.E.R.T. Defendants searched him ‘without any [l]egitimate penological purpose for the strip … Continue reading
CA8: Alleged degrading strip search of transgender inmate stated claim
An allegedly retaliatory prison strip search alleged to be degrading and too intrusive stated a claim and survived qualified immunity on the Fourth Amendment but not the First Amendment retaliation claim. The inmate was transgender transitioning to female. Beard v. … Continue reading
N.D.N.Y.: Strip search of transgender woman going into jail who might bond out was reasonable
Strip search of a transgender woman going into custody was reasonable, even though she’d likely bail out soon. “Applying Florence to this case, the Court finds that JCCF’s policy is consistent with the Fourth Amendment. Although JCCF’s institutional safety concerns … Continue reading
W.D.Pa.: Prisoners stated 4A claim for recording of attorney-client calls
Prison inmates stated a claim where their prison calls to their lawyers were recorded by the provider without their knowledge. “ICS’ contention that the recording here was proper because inmates have a lowered expectation of privacy is inapplicable. First, while … Continue reading
D.S.C.: Speeding stop justified even if dashcam video is inconclusive
The stop was justified: “In this case, although the dash cam footage is inconclusive of Officer Dudley’s visual estimate of speed, no evidence was put forth that cast doubt on Officer Dudley’s ability to estimate speed. Further, additional indicia of … Continue reading
TX5: No binding authority says there’s a REP in an inmate’s jail medical records
There is no binding authority that a jail inmate has a reasonable expectation of privacy in his jail medical records, so the court finds the exclusionary rule shouldn’t apply. Quaschnick v. State, 2024 Tex. App. LEXIS 1108 (Tex. App. – … Continue reading
DE: The PC for cell phone was limited to search history; SW otherwise overbroad
Defendant was accused of sexual contact with a four-year-old girl he was caring for. Her mother kicked him out of the house and sought a forensic exam of the child. A couple of days later, she found his cell phone … Continue reading
OH1: Intercepted jail call led to def’s arrest and search when he showed up at co-def’s house to move drugs
Jailers intercepted a jail call between an inmate and a confederate outside who was told to move the drugs from his house. Police surveilled the house. When defendant showed up with a backpack and came out of the house, there … Continue reading
N.D.Tex.: Video camera in pretrial detainee’s cell that showed the toilet was reasonable
“Ellis alleges that the placement of cameras in his cell that could record the toilet violated his Fourth Amendment right to privacy and constituted a state tort of invasion of privacy. ECF No. 19 at 19-22. But a pretrial detainee … Continue reading
CA7: Surveillance cameras covering courthouse lockup toilets are reasonable
The use of surveillance cameras viewing the toilet areas of the Cook County Courthouse lockups are, on balance of the interests involved, reasonable. Alicea v. Cty. of Cook, 2023 U.S. App. LEXIS 33401 (7th Cir. Dec. 18, 2023):
D.Utah: Def in jail can’t get unrecorded phone calls to nonlawyers to prepare for trial
Defendant seeks unrestricted phone access without recording, but not just to his lawyer or standby counsel–every call. No First, Fourth, or Sixth Amendment violation (limited to lawyers). United States v. Cromar, 2023 U.S. Dist. LEXIS 215498 (D. Utah Dec. 4, … Continue reading
W.D.Mich.: Inmate can’t claim a medical condition and then refuse testing on 4A grounds
Plaintiff inmate claims to have an allergy. The prison wanted to draw blood to confirm. “Plaintiff has failed to state a claim that the Defendants violated his Fourth Amendment right to be free from unreasonable searches and seizures when they … Continue reading
E.D.Tex.: You can’t remove a state criminal case to federal court to decide your search and seizure question
One can’t remove a state criminal case to federal court via habeas to decide his search warrant motions. Washington v. 5th Dist. Court of Texas, 2023 U.S. Dist. LEXIS 209404 (E.D. Tex. Oct. 10, 2023), adopted 2023 U.S. Dist. LEXIS … Continue reading
S.D.Fla.: Scrolling through electronic devices at the border is reasonable in CA11
Merely scrolling through an electronic device at the border is a reasonable border search. United States v. Vrdoljak, 2023 U.S. Dist. LEXIS 208332 (S.D. Fla. Nov. 20, 2023). The officer was incidentally following defendant, and he observed her driving within … Continue reading
N.D.Iowa: Even though stop showed def wasn’t impaired, DL and LPN could still be run
Even though defendant apparently wasn’t driving impaired, once validly stopped, the officer could run DL and LPN checks. The dog sniff didn’t prolong the stop at all. United States v. Drayton, 2023 U.S. Dist. LEXIS 206461 (N.D. Iowa Oct. 10, … Continue reading
N.D.Cal.: No REP in a computer possessed in a halfway house
Plaintiff had no reasonable expectation of privacy in a computer given him by Goodwill for whom he worked while he was living in a halfway house. He was still an inmate of the BOP. “There is no reasonable or legitimate … Continue reading
S.D.Cal.: A pending forfeiture action in another district justifies dismissal of Rule 41(g) motion because there is another remedy
This is a Rule 41(g) action for return of property, a superyacht owned by a Russian oligarch seized allegedly in violation of Russian sanctions. The next day, a forfeiture action was filed in the S.D.N.Y., and that provided an adequate … Continue reading
IN: Patdown of man in medical distress before paramedics arrived was reasonable
Defendant’s patdown search when he was found lying in a parking lot in medical distress was objectively reasonable as an emergency search, if just for what was on him before paramedics arrived. Meth was found. Lack of a separate state … Continue reading
M.D.Pa.: Police continually banging on def’s door to come out was seizure; no exigency applies; suppressed
Defendant fled from the police in his car in a highspeed chase. They went to his house and came on to defendant’s curtilage, his porch, and shined flashlights through the windows. This was a search on a constitutionally protected area. … Continue reading