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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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--Electronic Communications Privacy Act (2012)
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Section 1983 Blog -
"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.Wis.: 40 day delay in getting cell phone SW was not unreasonable where def was still in custody and could not possess it
Delays in the case were to work out a plea agreement, not file motions. For that reason, the motion to suppress is denied. On the merits, the 40 day delay in seeking a warrant for his cell phone was reasonable … Continue reading
CA1: Affidavit for CP failed to show any more than child nudity and lacked PC; no GFE either
The search warrant for defendant’s phone was defective and lacked probable cause. Child nudity alone is not child pornography, and the affidavit tracks the statute and doesn’t show that it was pornography. “We hold that the affidavit failed to cross … Continue reading
E.D.N.Y.: Rooker-Feldman barred § 1983 claim over search litigated in state court
“Applying these standards, the Court concludes that Rooker-Feldman precludes only Plaintiff’s Fourth Amendment illegal seizure claim and damages sought amounting to the Property’s value. All four factors of the Rooker-Feldman doctrine are present here as to the Fourth Amendment cause … Continue reading
GA: 2022 SW for cell phone illegally searched in 2020 had no independent basis; no GFE
The trial court did not err by granting the motion to suppress evidence seized as a result of the search of his cell phone because the State’s original warrantless search in 2020 was improper and the State did not remedy … Continue reading
Techstory: Cellphone Border Searches: Feds, You’ll Need a Warrant
Techstory: Cellphone Border Searches: Feds, You’ll Need a Warrant by Sneha Singh (“In a groundbreaking ruling, a federal district judge declared that authorities must obtain a warrant before searching an American citizen’s cell phone at the US border, except in … Continue reading
NY: Second SW for phone a year later after first SW failed to show PC wasn’t timely
The first cell phone search warrant was rejected for lack of probable cause. It only provided a generic description of cell phones as repositories of potential evidence without linking it to this case. The phone was still in the evidence … Continue reading
GA: Not objecting to mention of “probation” search at trial was not IAC
Not objecting to defendant’s probation status where it came up as a probation search was not unreasonable. Plus, it would have otherwise come in. “Hutcheson’s probation status was thus necessary to complete the State’s story of the crime. Trial counsel’s … Continue reading
Techdirt: Judge Tosses Evidence After Government Took More Than Three Years To Crack A Suspect’s Phone
Techdirt: Judge Tosses Evidence After Government Took More Than Three Years To Crack A Suspect’s Phone by Tim Cushing (“A robbery/kidnapping case allegedly implicating business owner and immigrant Evgeni Kopankov has resulted in the government losing the evidence it took … Continue reading
OH3: Invalid admin SW was saved by GFE
An administrative search warrant issued under the state criminal procedure law was invalid because of limits on who could request and serve a warrant (i.e., law enforcement officers and prosecutors). However, the good faith exception applies to administrative warrants, too. … Continue reading
CA7: Home confinement sentence included a valid search waiver
Defendant was serving a home confinement sentence that included a search waiver. Officers developed reasonable suspicion of another crime and a violation of living conditions. The search was reasonable. United States v. Beechler, 2023 U.S. App. LEXIS 12312 (7th Cir. … Continue reading
N.D.Cal.: “A small constitutional violation is no less a constitutional violation” here a cell phone search that is suppressed
The government attempted to access defendant’s cell phone in the jurisdiction but couldn’t. It sent it to Quantico for a “brute force” password attempt that could involve 1,000,000 combinations with waiting periods defined by the software they installed. Some brute … Continue reading
S.D.N.Y.: Copying cell phone at border was unreasonable, but GFE and a later SW saved it
Defendant’s cell phone was copied when he came back to Newark airport after a flight to Jamaica. “As such, the Court concludes that the Government may not copy and search an American citizen’s cell phone at the border without a … Continue reading
N.D.Ill.: Passenger in car had standing to challenge search of his own bag during stop
Defendant had standing to challenge the search of his own bag when he was riding in someone else’s car. The protective sweep of the car, however, was based on reasonable suspicion and finding an ammunition box was plain view. United … Continue reading
MN: Purse in car could be searched under automobile exception
The warrantless search of defendant’s purse was lawful under the automobile exception because there was probable cause to believe that the car contained a controlled substance, and the purse was a container within that car. State v. Barrow, 2023 Minn. … Continue reading
TN: By killing one’s host, guest standing is lost
By attacking and killing his hosts, his parents, defendant lost guest standing, if he would have had it at all. Police conducted a welfare check and found severed body parts in plastic tubs and on the stove, including a head … Continue reading
CA9: Mere typo in SW affidavit doesn’t support Franks challenge
Defendant’s Franks challenge was conclusory and based on mere typographical errors. United States v. Howard, 2023 U.S. App. LEXIS 9069 (9th Cir. Apr. 17, 2023). Habeas petitioner’s admission of procedural default of his Fourth Amendment claim was an admission there … Continue reading
PA: SW for flashlight app data on cell phone sustained
The affidavits for search warrant for this cell phone were overbroad as to what was sought lacking probable cause except for location data and use of the flashlight function. Defendant was accused of using the flashlight on his cell phone … Continue reading
NY Richmond Co.: Mere possession of a cell phone while committing an assault isn’t PC for the phone
Defendant’s possession of a cell phone at the time of his allegedly committing an assault was not probable cause to search the phone. Motion to suppress granted as to it. People v. Vergara, 2023 NY Slip Op 23083, 2023 N.Y. … Continue reading
S.D.W.Va.: This border search of cell phone was routine, despite taking 4 hours
The border search of defendant’s cell phone was routine and reasonable and didn’t need reasonable suspicion. He provided the passcode, and the phone was on airplane mode so it did not go outside the phone. United States v. Tick Chin, … Continue reading