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- W.D.Ark.: Parole search waiver moots lack of PC argument
- AR: RS shown for boating while intoxicated stop
- W.D.Mo.: Wrong address in SW wasn’t fatal where right house was searched
- NY: Failure to show independent source for officer’s observation of def required reversal
- VA: Outline of a gun in def’s pocket was RS
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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)
--Federal Laws Relating to Cybersecurity: Discussion of Proposed Revisions (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: Informational privacy
MT: Katz test applies to informational privacy
Montana applies the Katz reasonable expectation of privacy case to informational privacy, here a worker’s comp case. By filing a worker’s comp claim, the claimant did not waive all privacy rights in medical records. Malcomson v. Liberty Northwest, 2014 MT … Continue reading
TX4 follows Fifth Circuit and TX14: Search warrant not required for CSLI
TX4 follows Fifth Circuit and TX14: Search warrant not required for CSLI. It is information kept by the phone provider and voluntarily disclosed to it by the use of the cell phone. Ford v. State, 2014 Tex. App. LEXIS 9159 … Continue reading
NE: SW not needed for cell phone call records
Defendant’s cell phone call records were obtained by subpoena. This is governed by Smith v. Maryland, and not by any of the cases involving search warrants for the contents of cell phones. [Riley not cited because case arose pre-Riley.] Big … Continue reading
FL2: SW for medical records were sealed; they need to be opened for investigation but protect rights of patients
Search warrants were used to obtain patient medical records of alleged illegal pain management clinics that implicated the privacy rights of the patients, and they were sealed, amounting to an order of suppression. The circuit court is ordered to fashion … Continue reading
NACDL White Paper: What’s Old is New Again: Retaining Fourth Amendment Protections in Warranted Digital Searches
NACDL White Paper: What’s Old is New Again: Retaining Fourth Amendment Protections in Warranted Digital Searches (news release)
OH10: No REP in IP subscriber information under OH Constitution
There is no reasonable expectation of privacy in IP subscriber information under the Ohio Constitution. Other Ohio courts and other state courts have so held. [In fact, no other court disagrees yet.] State v. Fielding, 2014-Ohio-3105, 2014 Ohio App. LEXIS … Continue reading
WaPo: Manhattan prosecutor issued sweeping, secret Facebook warrant
WaPo: Manhattan prosecutor issued sweeping, secret Facebook warrant by Radley Balko: The New York Times reports on a big investigation by the Manhattan District Attorney’s office into disability fraud by more than 100 New York City police officers and firefighters. … Continue reading
NC: De minimus rule for traffic stops doesn’t apply when they have to wait for the drug dog
Once the basis for the traffic stop was completed, the stop had to end. Defendant was asked for consent and refused, and the officer told him he was staying for a drug dog to arrive. The state argued for the … Continue reading
RT.com: Facebook fighting against ‘largest ever’ govt data request in court
RT.com: Facebook fighting against ‘largest ever’ govt data request in court: Facebook is locked in a legal battle over a court ruling that forced the site to hand over data from almost 400 profiles to authorities. The social media site … Continue reading
NYTimes: Facebook Bid to Shield Data From the Law Fails, So Far
NYTimes: Facebook Bid to Shield Data From the Law Fails, So Far by Vindu Goel and James C. McKinley Jr.: In confidential legal documents unsealed on Wednesday, Facebook argues that Manhattan prosecutors last summer violated the constitutional right of its … Continue reading
EFF: Smith v. Maryland Turns 35, But Its Health Is Declining
EFF: Smith v. Maryland Turns 35, But Its Health Is Declining The U.S. Supreme Court’s 1979 decision of Smith v. Maryland turned 35 years old last week. Since it was decided, Smith has stood for the idea that people have … Continue reading
WaPo: The Fourth Amendment and regional variation
WaPo: The Fourth Amendment and regional variation by Orin Kerr: The recent circuit split between the Fifth Circuit and the Eleventh Circuit over collecting cell-site records without a warrant prompts an interesting question about how Fourth Amendment doctrine responds to … Continue reading
Center for Investigative Reporting: Plans to expand scope of license-plate readers alarm privacy advocates
Center for Investigative Reporting: Plans to expand scope of license-plate readers alarm privacy advocates by Ali Winston: Documents obtained by The Center for Investigative Reporting show that a leading maker of license-plate readers wants to merge the vehicle identification technology … Continue reading
ACLU: Stingray Tracking Devices: Who’s Got Them?
ACLU: Stingray Tracking Devices: Who’s Got Them? The map below tracks what we know, based on press reports and publicly available documents, about the use of stingray tracking devices by state and local police departments. Following the map is a … Continue reading
NJLJ: N.J. Wants Warrantless Access to Phone Customers’ Billing Records
NJLJ: N.J. Wants Warrantless Access to Phone Customers’ Billing Records by Mary Pat Gallagher: The New Jersey Attorney General’s Office is asking county prosecutors statewide for their help in overturning a 32-year-old state Supreme Court precedent that requires a warrant … Continue reading
S.D.N.Y.: Gov’t required to limit scope of application for location data
A cell phone tower dump of cell site location data on phones is not subject to a reasonable expectation of privacy because the system works by keeping track of location all the time and the customers have to know it. … Continue reading
WaPo: Another federal judge rules on legality of NSA surveillance
WaPo: Another federal judge rules on legality of NSA surveillance by Orin Kerr: The opinion is Smith v. Obama from Judge Winmill of the District of Idaho. Judge Winmill concludes that the NSA program complies with the Fourth Amendment as … Continue reading
WaPo: Indigent and need a lawyer? It may cost you the Fourth Amendment
WaPo: Indigent and need a lawyer? It may cost you the Fourth Amendment by Radley Balko: Add this one to your “criminalization of poverty” files. It seems that McLennan County, Tex., has a new public employee: The presence of a … Continue reading
news.gnom.es: Quantifying Privacy: A Week of Location Data May Be an “Unreasonable Search” & New Law Review Article: Mosaic Theory and Machine Learning
News Gnomes: Quantifying Privacy: A Week of Location Data May Be an “Unreasonable Search” When does the simple digital tracking of your location and movements — the GPS bleeps from most of our smartphones — start to be truly revealing? … Continue reading
WaPo Editorial: Consumers should be able to see the data companies collect about them
WaPo Editorial: Consumers should be able to see the data companies collect about them: MANY AMERICANS are discovering the hard way that they live in a world of prying eyes. This is the underside of the digital revolution. Tens of … Continue reading