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- D.N.M.: DEA’s failure to make a detailed inventory in violation of policy doesn’t require exclusion of evidence
- WaPo: These cities bar facial recognition tech. Police still found ways to access it.
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- AR: RS def rented a hotel room was sufficient for search waiver; PC not required
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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
FL1: Foregone conclusion exception applies to compelling def’s cell phone password
The foregone conclusion exception applies to compelling defendant’s cell phone password, thus distinguishing Pollard v. State, 287 So. 3d 649 (Fla. 1st DCA 2019). Varn v. State, 2020 Fla. App. LEXIS 12478 (Fla. 1st DCA Sept. 3, 2020):
FL5: Compelling password to cell phone violates 5A
An attempt to order a cell phone owner to provide his password to the phone is testimonial under the Fifth Amendment. The court also concludes the foregone conclusion doctrine does not apply. Garcia v. State, 2020 Fla. App. LEXIS 12232 … Continue reading
NJ: Once SW issues for cell phone, foregone conclusion exception to self-incrimination applies and password can be compelled
Once a search warrant issues for a cell phone, there is no privilege of self-incrimination in the phone barring compelled production of the password. The foregone conclusion exception to the Fifth Amendment applies. State v. Andrews, A-72-18 (N.J. Aug. 10, … Continue reading
HPPR: Class Action Suit Over Recorded Calls At Leavenworth Prison Settles For $3.7 Million
HPPR: Class Action Suit Over Recorded Calls At Leavenworth Prison Settles For $3.7 Million by Dan Margolies:
IN: Def couldn’t be held in contempt for refusing to unlock cell phone pleading 5A
“When Katelin Seo was placed under arrest, law enforcement took her iPhone believing it contained incriminating evidence. A detective got a warrant to search the smartphone, but he couldn’t get into the locked device without Seo’s assistance. So the detective … Continue reading
techdirt: On The Same Day The FBI Claimed No Vendor Could Crack IPhones, Another Way To Crack IPhones Made The News
techdirt: On The Same Day The FBI Claimed No Vendor Could Crack IPhones, Another Way To Crack IPhones Made The News by Tim Cushing:
Chattanooga Times Free Press: State health department gives names, addresses of Tennesseans with COVID-19 to law enforcement
Chattanooga Times Free Press: State health department gives names, addresses of Tennesseans with COVID-19 to law enforcement by Anita Wadhwani (“The Tennessee Department of Health is providing the names and addresses of residents who test positive for COVID-19 to sheriffs … Continue reading
CT: Dismissal not appropriate remedy here for violation of A-C privilege in execution of SW
Defendant did not show that all the documents seized were attorney-client privileged for purposes of litigation. Some were. However, dismissal is not the appropriate remedy, despite the fact privileged information made it into the media from the arrest warrant materials. … Continue reading
E.D.Wash.: Seizure of e-mails between def and lawyer prior to adversary proceedings didn’t violate 6A
The seizure of defendant’s emails between him and his lawyer didn’t violate the Sixth Amendment when adversary proceedings had not yet begun – defendant wasn’t indicted for more than a year later. United States v. Smith, 2020 U.S. Dist. LEXIS … Continue reading
IL: Flight from gunshots is not RS
Defendant’s flight into his house on hearing gunshots was not reasonable suspicion to give chase or probable cause to enter the house to arrest him. Anybody would flee gunshots. People v. Craine, 2020 IL App (1st) 163403, 2020 Ill. App. … Continue reading
FL2: Direct contempt for refusing to provide passcode for cell phone search reversed; out-of-court evidence couldn’t be considered
Defendant was held in contempt and sentenced to five months and 29 days for refusing to provide the passcode for his cell phone so it could be searched under a warrant. “However, whether a finding of contempt could have been … Continue reading
GA: Failure to bring up record of suppression hearing held instead in a connected case was waiver
Defendant was charged under indictment 1 and had a suppression hearing. He was reindicted in indictment 2 and went to trial in that case. When he appealed, the record of conviction under indictment 2 came up for appeal and no … Continue reading
ABAJ: Inmate wins [pretrial] release after jail recorded hundreds of attorney-client calls
ABAJ: Inmate wins release after jail recorded hundreds of attorney-client calls by Stephanie Francis Ward:
TX14: Client had standing to object to seizure of her files from her attorney’s office for his misapplication of her fee into trust account
A search warrant was executed on a divorce lawyer’s office for some client files after a $75,000 retainer was paid into the IOLTA account which had a -$49,000 balance. The district court erred in holding the client had no standing … Continue reading
W.D.N.Y.: Getting def to unlock his phone wasn’t unreasonable because the SIM card would have been forensically searched later anyway
It was reasonable for POs to search defendant’s unapproved cell phone without a search warrant as a probation search. Making him use his face or get the password to unlock the phone was not unreasonable because the contents of the … Continue reading
NPR.org: Warrant-Proof Encrypted Messages Targeted By Trump Administration
NPR.org: Warrant-Proof Encrypted Messages Targeted By Trump Administration (“‘End-to-end encryption’ has gone mainstream, which means tech companies can’t decrypt messages even when law enforcement has a warrant. The Trump administration says that’s taking privacy too far.”)
SSRN: Decryption Originalism: The Lessons of Burr
SSRN: Decryption Originalism: The Lessons of Burr by Orin S. Kerr. Abstract:
CA3: Civil contempt for failing to provide password to computers and other devices for search was limited to 18 months
Petitioner has been held for three years for civil contempt for failure to provide encryption data for his computer and other devices so they could be searched under a warrant. The punishment for civil contempt can’t exceed the life of … Continue reading
MI: Civil discovery must comply with the 4A; here a cell phone search
Civil discovery must comply with the Fourth Amendment. Here, there was an order to turn over a cell phone for forensic evaluation, and it was essentially based on probable cause. Attorney-client privilege must also be protected. Martin v. Martin, 2020 … Continue reading
Bloomberg Law: INSIGHT: State Investigations—50 Takes on Subpoena, Privilege, Document Rules
Bloomberg Law: INSIGHT: State Investigations—50 Takes on Subpoena, Privilege, Document Rules by Brendan Parets: