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ABA Journal Web 100, Best Law Blogs (2017); ABA Journal Blawg 100 (2015-16) (discontinued 2018)
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© 2003-23,
online since Feb. 24, 2003 Approx. 350,000 visits (non-robot) since 2012 Approx. 45,000 posts since 2003 (25,700+ on WordPress as of 12/31/22)~~~~~~~~~~~~~~~~~~~~~~~~~~
Fourth Amendment cases,
citations, and linksLatest Slip Opinions:
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To search Search and Seizure on Lexis.com $Research Links:
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Federal Law Enforcement Training Center Resources
FBI Domestic Investigations and Operations Guide (2008) (pdf)
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Stringrays (ACLU No. Cal.) (pdf)
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)
--Federal Laws Relating to Cybersecurity: Discussion of Proposed Revisions (2012)
ACLU on privacy
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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!”
"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."
---Pepé Le Pew
—Johnson v. United States, 333 U.S. 10, 13-14 (1948)
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Category Archives: Privileges
W.D.Tex.: Right to non-recording and distribution of jail calls to attorneys was clearly established
Plaintiff’s complaint against the jail for recording attorney-client calls and transmitting them to law enforcement and prosecutors stated a claim for relief that was clearly established. Hurdsman v. Gleason, 2023 U.S. Dist. LEXIS 163081 (W.D. Tex. Sep. 14, 2023). Defendant’s … Continue reading
E.D.Pa.: Cell phone passcode given by consent, but Cellebrite can open phone anyway
Defendant consented to giving up the passcode to his phone. The court notes in n.2 that Cellebrite can crack the passcodes. United States v. Frey, 2023 U.S. Dist. LEXIS 141180 n.2 (E.D. Pa. Aug. 14, 2023). Defendant was reasonably denied … Continue reading
Kansas Reflector: In Marion County newspaper raid, a grim threat to Kansans’ First Amendment rights
Kansas Reflector: In Marion County newspaper raid, a grim threat to Kansans’ First Amendment rights by Clay Wirestone:
NY Albany: Text message confession to molestation to wife was still covered by marital privilege when she disclosed to police
Defendant confessed to his wife by text message to molestation of his nephew. Despite her consenting to turn it over to the police, he had a reasonable expectation of privacy in the message and marital privilege still applied. People v. … Continue reading
OH10 finds that medical records are sufficiently analogous to CSLI that a SW is required to get them
OH10 finds that medical records are sufficiently analogous to CSLI that there is a reasonable expectation of privacy and a search warrant, not a subpoena, is required. State v. Rogers, 2023-Ohio-2749, 2023 Ohio App. LEXIS 2707 (10th Dist. Aug. 8, … Continue reading
E.D.Tenn.: Suppression not remedy for violation of equal protection
Suppression of evidence is not the remedy for an equal protection violation, even if it were valid, which it’s not. United States v. Christie, 2023 U.S. Dist. LEXIS 129172 (E.D. Tenn. July 26, 2023). A fictitious license plate is reasonable … Continue reading
techdirt: Top Court In Illinois Says Compelling Password Production Isn’t A 5A Violation
techdirt: Top Court In Illinois Says Compelling Password Production Isn’t A Fifth Amendment Violation by Tim Cushing. Case posted here.
E.D.N.Y.: Compelled use of fingerprint to open cell phone not testimonial
Seeking to have defendant use his fingerprint to unlock his cell phone was not testimonial. The Second Circuit hasn’t ruled yet. “Nevertheless, the Court is persuaded by the weight of authority in other circuits, which holds that the compelled use … Continue reading
IL grants access to cell phone passcode because biometric scan obviates act of production doctrine
After finding jurisdiction because denying the state access to a cell phone by its forcing the revealing of its passcode was effectively suppressing the search warrant, the Illinois Supreme Court holds that the act of production doctrine of the Fifth … Continue reading
M.D.Pa.: Once police executing a warrant on a home discover it’s multi-family, the search must end and a new SW be obtained
After the police entered the building and conducted a security sweep, they discovered only then it was actually a multi-occupant dwelling. There was no outward appearance there were multiple non-family occupants. The first entry finding a gun was valid. The … Continue reading
Ga.Bar J.: Who Should Guard the Attorney-Client Privilege When Documents are Seized by Law Enforcement
Don Samuels & Scott Grumman, Who Should Guard the Attorney-Client Privilege When Documents are Seized by Law Enforcement, 28 Ga. Bar J. 19 (No. 4 Feb. 2023) (“Some cases may involve seizures of computers and other devices that contain millions … Continue reading
NJ: SDT for S&W records on use of its products in NJ was enforced; 1A and other claims preserved
Subpoenas for documents under the state Consumer Fraud Act about the ability of average consumers to use plaintiff’s firearms for personal or home defense were enforceable under the Fourth Amendment. Plaintiff’s claims under other amendments are preserved for later. Platkin … Continue reading
D.D.C.: In motion to withdraw plea, waived motion to suppress was arguable and IAC
Here, failure to file a motion to suppress on the obtaining defendant’s passcode for his cell phone was ineffective assistance of counsel. At this point, it was debatable, and it should have been raised. The government had the phones, and … Continue reading
Courthouse News Service: Right to livestream traffic stops debated at Fourth Circuit
Courthouse News Service: Right to livestream traffic stops debated at Fourth Circuit by Erika Williams (“A shouting match erupted between a judge and an attorney at a hearing over whether passengers in cars pulled over by police can broadcast their … Continue reading
CA9: AZ GOP head denied injunction for Jan.6 committee subpoena for call logs in 1A challenge
The head of the Arizona GOP sued the January 6th Committee to block a subpoena to T-Mobile for her call records, not content, on First Amendment Free Association grounds. On appeal, the injunction is denied. This is similar to Eastman’s … Continue reading
D.Mass.: Lawyer target of SW for records has no right to participate in the initial taint team review
A lawyer is the target of a search warrant. The government was using a taint team (or “filter team”) to review the materials for privileged matters. The lawyer proposed a more restrictive approach, and the government agreed with part of … Continue reading
E.D.Pa.: Work product privilege in product of a SW is burden of defense
A special master reviewed the product of the search warrant for work product materials. The defendants have the burden of proof on work product, and they didn’t meet it. United States v. Vepuri, 2022 U.S. Dist. LEXIS 151833 (E.D. Pa. … Continue reading
OK: 5A’s foregone conclusion rule applies to passcodes
The foregone conclusion rule applies to defendant’s Fifth Amendment claim revealing the password to his electronics would incriminate him. Reynolds v. State, 2022 OK CR 14, 2022 Okla. Crim. App. LEXIS 14 (Aug. 4, 2022):
S.D.Miss.: Taint team after a SW isn’t a judicial function, rejecting Baltimore Law Firm
This district court rejects, as has S.D.N.Y., the Art. III function of filter teams reviewing searches of Baltimore Law Firm. (In re Search Warrant Issued June 13, 2019 (“Baltimore Law Firm”), 942 F.3d 159, 170-71 (4th Cir. 2019)). Too much … Continue reading
NJ: Court order for cell phone passcodes is a 5A question; 4A inquiry erroneously included
“The State appeals the denial of its motion to compel a cell phone passcode from defendant, C.J.L. The State argues the motion court erred by overlooking critical ownership evidence and misapplying the foregone conclusion doctrine, effectively importing Fourth Amendment principles … Continue reading
