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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)
--Overview of the 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: Private search
W.D.Mo.: ER’s security staff conducts private searches of GSW victims
Defendant showed at a hospital ER with a gunshot wound. Hospital policy was for its security staff to search GSW patients’ clothing for staff safety. This was a private search, and it produced ammunition from a convicted felon. United States … Continue reading
S.D.W.Va.: A tiny scrap of mj in a trash pull doesn’t support an inference of drug dealing from the house
“Detective Aldridge could not reasonably have believed that the three tiny scraps of marijuana in the trash—unable to cover even a corner of a Post-it note [actually a stem; photo included]—could support the idea of ongoing or recurrent activity in … Continue reading
D.Vt.: Apt building parking lot not curtilage; def’s girlfriend was private searcher
Defendant’s vehicle was in an apartment building parking lot, and that’s not curtilage. There was also probable cause to search it and it was mobile. Defendant’s cell phone was privately seized from his vehicle and turned over to police by … Continue reading
W.D.Ky.: 4A doesn’t apply in civil discovery between private parties
In a civil dispute, defendant can get discovery of plaintiff’s text messages. Her Fourth Amendment and reasonable expectation of privacy argument is unavailing because they don’t apply to private parties. Petty v. Bluegrass Cellular, 2021 U.S. Dist. LEXIS 64853 (W.D. … Continue reading
DC: Tacit approval for private search made it state action
Defendant was arrested in a rental car, and he claimed ownership of the bags in the trunk. The police gave tacit approval to the towing company employee’s search of the bags, thus making him an agent for the search. Fogg … Continue reading
N.D.W.Va.: No REP in readily visible interior of car
There is no reasonable expectation of privacy in the interior of a car visible through the window. United States v. Swartz, 2020 U.S. Dist. LEXIS 248194 (N.D. W.Va. Dec. 11, 2020),* adopted, 2021 U.S. Dist. LEXIS 10918 (N.D. W.Va. Jan. … Continue reading
E.D.Tenn.: Facebook is not a government actor
Facebook is not a government actor, even if NCMEC is under the Tenth Ciruit’s Ackerman. United States v. Sykes, 2021 U.S. Dist. LEXIS 9580 (E.D. Tenn. Jan. 19, 2021). 46 days from a child pornography download by the government to … Continue reading
Lawfare: Online Service Providers and the Fight Against Child Exploitation: The Fourth Amendment Agency Dilemma
Lawfare: Online Service Providers and the Fight Against Child Exploitation: The Fourth Amendment Agency Dilemma by Jeff Kosseff:
CA8: Creighton U. security officers are private actors
Creighton University security officers are private actors in seizing and searching defendant. They did not act in concert with any law enforcement agency, and they called the police to take defendant away. United States v. Avalos, 2021 U.S. App. LEXIS … Continue reading
D.Del.: Videotaping an otherwise valid prison strip search isn’t a per se 4A violation
“Plaintiff does not allege that the search itself violated his rights but, rather, it is the recording of the search that he finds objectionable.” “[U]sing a camera to record a strip search in a prison does not, by itself, amount … Continue reading
CA8: Remodeler found video voyeur camera and conducted a private search then turned it over to police
A man remodeling defendant’s house found a USB port in the bathroom, and he gathered that the USB could be used to hook up a camera in the bathroom to record children visiting there. He took the device he found … Continue reading
CA6: Looking at hash values on images of CP didn’t expand the private search
Officers looking at the hash information on child pornography images sent from NCMEC who got them from gmail wasn’t expansion of the private search under Jacobsen and Walter. United States v. Miller, 2020 U.S. App. LEXIS 37787 (6th Cir. Dec. … Continue reading
CA6: Motel keeper searching room with police on standby watching was still private search
A motel manager called the police to help evict room renters because a room occupant in a no-smoking hotel was smoking marijuana in a room. She searched the room while the police were there watching. They didn’t encourage her. She … Continue reading
Cal.4th: Google turning over CP to NCMEC was private search
Google found child pornography in emails and submitted them to NCMEC. This was a private search (which is explained in detail). It is no different than the search in Jacobsen. People v. Wilson, 2020 Cal. App. LEXIS 976 (4th Dist. … Continue reading
MT: Private actor recording conversation on own didn’t violate state constitution
The Montana Constitution’s more “robust protection from government intrusions” still only protects against state action. A private actor recording a conversation without impetus from the state was not unreasonable. State v. Wolfe, 2020 MT 260, 2020 Mont. LEXIS 2436 (Oct. … Continue reading
D.Kan.: USMJ there properly issued SW for Dropbox account in California
Jurisdiction for search warrants in federal court is over the offense. Thus, a USMJ could sign a search warrant for a Dropbox account in California under the SCA. United States v. Hopkins, 2020 U.S. Dist. LEXIS 173418 (D. Kan. Sept. … Continue reading
CA7: CHA security guard not state action
A security guard employed by the Chicago Housing Authority was not a state actor. There is already precedent in this circuit. United States v. Green, 2020 U.S. App. LEXIS 29421 (7th Cir. Sept. 16, 2020). The SDNY searched defendant’s emails … Continue reading
TN: A security guard’s state license is not “state action” for 4A
A state licensed private security guard was not a state actor under the Fourth Amendment when he searched defendant’s cell phone trying to determine the owner. State v. Simpson, 2020 Tenn. Crim. App. LEXIS 594 (Sept. 1, 2020). “Additionally, we … Continue reading
S.D.Ohio: Child abuse allegation isn’t stale because it’s of “continuing concern”
The information for the search warrant was not stale: “In this light, the information about child abuse was not stale. Indeed, the character of the alleged crime—abuse of a child—was grounds for continuing concern.” As to continuing a traffic stop: … Continue reading