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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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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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Category Archives: Privileges
S.D.Tex.: No 5A protection on phone pass code, and inevitable discovery applies
The foregone conclusion rationale for access to passcodes for cell phones. There was no Fifth Amendment privilege to providing the passcodes. Inevitable discovery applies. United States v. Zhengdong Cheng, 2022 U.S. Dist. LEXIS 6437 (S.D.Tex. Jan. 12, 2022):
N.D.Ohio: Def’s psychotherapist reported he was viewing CP; 4A does not prohibit using it in SW application
The psychotherapist-patient privilege does not bar use of a report from defendant’s psychotherapist to law enforcement that defendant admitted viewing child pornography. The psychotherapist discussed with others and concluded that a report was necessary. Whatever the privilege for trial, it … Continue reading
WI: Contempt for failing to provide passcode for search of phone is reversed because it is now moot by SW
The owner of a cell phone was held in contempt for not providing a passcode to his phone so police could search it. They did not yet have a warrant. After defendant was held in contempt, the police obtained a … Continue reading
IL: The foregone conclusion doctrine applies to providing passcode to search a cell phone
The foregone conclusion doctrine applies to obtaining the passcode to a cell phone to search it. Thus, production of the passcode is non-testimonial for the Fifth Amendment. People v. Sneed, 2021 IL App (4th) 210180, 2021 Ill. App. LEXIS 637 … Continue reading
OH11: No standing in father’s cell phones even when communicating with defense experts
Defendant is charged with killing his wife. He didn’t have standing to challenge a search warrant for his father’s cell phones where attorney-client privilege in their contents was asserted because the father was communicating with expert witnesses in his case. … Continue reading
Politico: FBI raid on Project Veritas founder’s home sparks questions about press freedom
Politico: FBI raid on Project Veritas founder’s home sparks questions about press freedom by Josh Gerstein (“The action against James O’Keefe has prompted concern about the Biden administration’s commitment to the First Amendment.”) Is O’Keefe a “journalist” or not? He … Continue reading
WA: HIPAA violation in seizing medical records by SW required their return
The trial court’s order denying return of patient records taken by search warrant from the petitioner youth services provider failed to comply with HIPAA requirements should have been granted. While the records have been returned and the case is otherwise … Continue reading
CA9: Use of def’s suppression hearing testimony in penalty phase not unreasonable application of Simmons
The California Supreme Court’s holding that Simmons did not bar using defendant’s suppression hearing testimony in the death penalty phase of his criminal trial (People v. Ochoa, 19 Cal. 4th 353, 79 Cal. Rptr. 2d 408, 966 P.2d 442, 464, … Continue reading
IN: Privilege against self-incrimination is not self-executing as to cell phone password disclosure
Defendant’s mid-trial motion to suppress a cell phone search was waived: It was not timely, and defendant consented to giving the passcode and gave consent to search it. The privilege against self-incrimination is not self-executing here. Kerner v. State, 2021 … Continue reading
CA11: Govt filter team for review of seized materials not per se unreasonable; stringent protocol followed
The use of a government filter time to review seized materials implicating the attorney-client privilege is not per se unreasonable. The USMJ ordered compliance with a more stringent protocol than approved in other cases. Injunction denied. In re Sealed Search … Continue reading
CA7: Destruction or sale of seized property wasn’t unreasonable or a taking
Property lawfully seized by the city is destroyed or sold after a short while if unclaimed. That doesn’t make it an unreasonable seizure or a taking. Conyers v. City of Chicago, 2021 U.S. App. LEXIS 24676 (7th Cir. Aug. 18, … Continue reading
D.N.M.: Truck inspection stop valid admin search under Burger
The New Mexico regulatory scheme for truck inspections has already been held to satisfy Burger. Stopping defendants’ truck for inspection at an inspection station was reasonable under that standard. On opening the trailer to compare to the bills of lading, … Continue reading
CA7: Confrontation clause doesn’t apply in suppression hearings
The confrontation clause does not apply in suppression hearings. United States v. Bebris, 2021 U.S. App. LEXIS 20974 (7th Cir. July 15, 2021). The apartment’s search warrant was for evidence of drug sales from it. Those found there at the … Continue reading
Reason: Cops Say Encryption Hinders Investigations. These Documents Say Otherwise.
Reason: Cops Say Encryption Hinders Investigations. These Documents Say Otherwise. by J.D. Tuccille (“Law enforcers have plenty of tools; they just want to paw through our data without effort or expense.”)
Techdirt: DOJ Asks DC Court To Compel Decryption Of Device Seized In A Capitol Raid Case
Techdirt: DOJ Asks DC Court To Compel Decryption Of Device Seized In A Capitol Raid Case by Tim Cushing. The government filed this pleading.
Orin S. Kerr, Decryption Originalism: The Lessons of Burr
Orin S. Kerr, Decryption Originalism: The Lessons of Burr, 134 Harv. L. Rev. 905 (2021):
Law.com: Hey SIRI, Does the Fifth Amendment Protect My Passcode?
Law.com: Hey SIRI, Does the Fifth Amendment Protect My Passcode? by Robert J. Anello & Richard F. Albert (“When law enforcement seeks to compel a subject to provide a passcode to allow them to rummage through a cellphone, courts have … Continue reading
WaPo: Giuliani’s legal profession does not shield him from seizure of electronics, prosecutors say
WaPo: Giuliani’s legal profession does not shield him from seizure of electronics, prosecutors say by Shayna Jacobs (“Rudolph W. Giuliani, the onetime personal attorney to former president Donald Trump, cannot claim his profession should have shielded him from the search … Continue reading
WY: Where the stop exceeds its purpose and becomes unreasonable, the fact it’s de minimus doesn’t make it reasonable
Where the stop exceeded reasonableness, the district court’s finding it was de minimus was error. It was less than the time for the dog sniff, but the dog had time to arrive. Mahaffy v. State, 2021 Wyo. LEXIS 71 (May … Continue reading