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- Bloomberg Law: Texas’ 100-Plus Year Investigatory Tool Ruled Unconstitutional
- D.Minn.: State law permits POs to conduct “unannounced visits” and that includes unannounced warrantless searches
- E.D.Va.: Three images from ALPR in 30 days wasn’t enough for a Carpenter violation
- CA5: The 4A doesn’t limit the number of officers that show up for an administrative search
- D.Idaho: The exclusionary rule does not apply in pretrial release revocations
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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 (27,400+ on WordPress as of 7/23/24) -
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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: Cell phones
E.D.N.Y.: RS required for non-routine customs cell phone search
An Italian businessman with business in Luxembourg and investment in the United States had his cell phone seized without reasonable suspicion at JFK and searched elsewhere. Reasonable suspicion is required for a non-routine cell phone search, and the data taken … Continue reading
OH2: Arrest clothes in jail storage can be searched without a warrant
Under established authority from 1993 in this court, defendant’s clothes from his arrest in storage at the jail can be tested for evidence without a warrant. State v. Wells, 2024-Ohio-4813 (2d Dist. Oct. 4, 2024). Defendant pled guilty and only … Continue reading
CO: Unlawfully obtained cell phone PIN used to search phone required suppression
The police unlawfully obtained defendant’s cell phone’s 6-digit PIN number to access his phone after a failed “brute force attack” attempting to get into the phone. That required suppression of the cell phone. People v. d’Estree, 2024 COA 106, 2024 … Continue reading
MO: Def fled state and abandoned murder weapon at his grandmother’s house
When defendant fled the state to avoid arrest, he left a bag with the murder weapon at his grandmother’s house. That was abandonment. The ping of his cell phone to locate him to arrest him was with exigent circumstances. State … Continue reading
D.Minn.: A cell phone tracking order was permitted where there was an arrest warrant for defendant
“Despite a dearth of binding precedent, this Court is satisfied that the existence of an active arrest warrant provides a sufficient basis for a magistrate judge to find probable cause to issue a tracking warrant allowing law enforcement to monitor … Continue reading
FL4: REP in Facebook private messages
(1) Florida’s 4th DCA finds a reasonable expectation of privacy in Facebook private messages as analogous to cell phone text messages. (2) When the records were seized under a warrant for a theft, they couldn’t be searched for evidence of … Continue reading
NE: Not IAC to not challenge state’s obtaining phone records
It was settled in this state long ago that there is no reasonable expectation of privacy in third-party cell phone records. Therefore, defense counsel wasn’t ineffective for not challenging it. State v. Rush, 317 Neb. 622 (Sep. 20, 2024).* On … Continue reading
N.D.Ind.: Cell phones are “tools of the trade” of drug dealing, so nexus is minimal [actually, practically non-existent]
While cell phones are “tools of the trade” of drug dealing, they usually can be swept up in a search warrant for the premises. While that works in drug cases, there should be caution in other types of cases. United … Continue reading
CA6: Electronic devices were “property under his control” subject to search while on supervised release
Defendant’s electronic devices were “property under his control” subject to search while on supervised release. United States v. Ramadan, 2024 U.S. App. LEXIS 23276 (6th Cir. Sep. 11, 2024). Plaintiff pleads an unreasonable strip search in prison, but the necessary … Continue reading
TN: Def opened door to admit suppressed cell phone evidence by asking the one question too many
Defendant successfully kept out cell phone tracking records for lack of probable cause. “However, during trial, based on defense counsel’s question of whether there was any ‘physical evidence’ connecting Defendant to the case, the trial court ruled that Defendant opened … Continue reading
MN: Order for buccal swab during pendency of case requires SW
A search warrant is required for a buccal swab after a criminal case is proceeding. State v. Steeprock, 2024 Minn. App. LEXIS 345 (July 29, 2024); State v. Jones, 2024 Minn. App. LEXIS 412 (Aug. 29, 2024). The search warrant … Continue reading
M.D.Pa.: Def’s Franks challenge fails for being vague as to what was inadequate and even which warrants were being challenged
“First, on a fundamental level, Bressi’s Franks request is insufficiently specific for this Court to reconstruct the warrants. Bressi does not point to a specific search warrant he claims was obtained through Agent O’Malley’s intentional or reckless disregard for the … Continue reading
TN: Cell phone recently calling deceased and it being at scene of murder was nexus
The state showed nexus to defendant’s iPhone and the crime by known recent calls between the co-conspirators and the victim and the phone being at the scene of the crime. State v. Young, 2024 Tenn. Crim. App. LEXIS 397 (Sep. … Continue reading
D.S.D.: Misidentifying cell phone make in SW no error where number and pass code were correct
Misidentifying defendant’s cell phone for a search warrant as a Motorola when it was a Samsung is a mistake that can be overlooked. It had the phone number in the warrant and defendant’s pass code opened it. Finally, the good … Continue reading
DE: Changing cell phones doesn’t defeat nexus
The state showed nexus and no staleness in warrant for defendant’s cell phone for pornography despite the fact he had a different phone at the time of the search. State v. Clark, 2024 Del. Super. LEXIS 619 (Aug. 29, 2024). … Continue reading
Cal.6: Cell phone SW was limited to a specific date and time for certain materials, but the search far exceeded it; suppressed, no GFE
The search warrant here was issued for evidence of a sexual assault of an adult. There were pretext text messages sent by the police pretending to be the victim to get an admission. When the search warrant was executed, child … Continue reading
CA11: Week’s delay in getting SW for cell phone was reasonable; def in custody and didn’t ask for it back.
The warrant for defendant’s cell phone wasn’t issued for a week, but the delay was reasonable. He was in jail with a diminished privacy interest, and he didn’t ask for it back. United States v. Watson, 2024 U.S. App. LEXIS … Continue reading