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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: State constitution
MA: Review of old body cam recording in unrelated investigation was a separate invasion of privacy requiring SW
The use of a body camera in the home responding to a domestic disturbance was reasonable. However, reviewing the body cam recording for the purposes of a later and unrelated investigation without a search warrant was unreasonable. The second look … Continue reading
CA10: Order to get out of car doesn’t unreasonably extend stop
The officer’s order for defendant to get out of the car was reasonable and did not unreasonably prolong the stop. United States v. Malone, 2021 U.S. App. LEXIS 26136 (10th Cir. Aug. 30, 2021). “While Fisk brings his assignment of … Continue reading
NJ Const. protects right of privacy in detainee’s private call from police station on unwarned recorded line
The state constitution protects against surreptitious recording of a telephone line from within a police station of a suspect where there was no warning and he was allowed into a room alone to make a call. State v. McQueen, 2021 … Continue reading
NJ declines to follow Heien under state constitution
NJ declines to adopt a reasonable mistake of law justification for an automobile stop and resulting search. At issue was a traffic law barring license plate frames that cover information on the plate that resulted in 100,000 stops per year. … Continue reading
ID: Nonpayment of fine warrant not based on PC for willfulness or ability to pay; writ of prohibition granted
A clerk’s affidavit of nonpayment said nothing about willfulness of nonpayment, and there was no showing of an “ability to pay analysis” for probable cause. Writ of prohibition against the contempt arrest is granted. Beck v. Elmore County Magistrate Court, … Continue reading
IA: State constitution prohibits warrantless trash search; “Current Fourth Amendment jurisprudence is a mess.”
Finding Iowa law long recognized trespass was an unreasonable entry, the state Supreme Court holds under the state constitution that trash out for collection by the trash collector is not abandoned property, and defendant still retained a reasonable expectation of … Continue reading
WY: Mere citation to state constitution without cogent argument for different treatment is waiver
Citation alone to the state constitution’s search and seizure without cogent argument for differentiating Fourth Amendment cases is waiver. The totality of information before the officer in the traffic stop justified it. Elmore v. State, 2021 Wyo. LEXIS 48 (Mar. … Continue reading
AZ: Third party doctrine after Carpenter doesn’t require SW for IP addresses and subscriber info
The third party doctrine after Carpenter does not make IP addresses and subscriber information protected by the Fourth Amendment or the state constitution. State v. Mixon, 2021 Ariz. LEXIS 3 (Jan. 11, 2021):
W.D.Wash.: Demand for records from federal govt didn’t state a Washington state law claim
A demand for records from the federal government doesn’t state a claim under Washington state law when plaintiff grudgingly gave up the records. Daviscourt v. United States, 2020 U.S. Dist. LEXIS 246610 (W.D. Wash. Dec. 10, 2020)*:
PA state const. requires actual exigency for automobile exception
Resolving tension in its cases, Pennsylvania holds that its state automobile exception requires both probable cause and an actual exigency. Commonwealth v. Alexander, 2020 Pa. LEXIS 6439 (Dec. 22, 2020):
CA9: Gratuitous dog bite can be excessive force; no QI here
“Our precedent clearly establishes that releasing a police dog to bite a person who neither endangers officers nor attempts to flee or resist arrest violates that person’s Fourth Amendment right to be free from unreasonable seizure. … Viewing the evidence … Continue reading
AZ: CSLI order here in 2014 wasn’t a “warrant” but it complies with GFE
Also in a death penalty case, defendant’s CSLI was obtained by court order four years before Carpenter. The court finds that, while it wouldn’t treat the “order” as the functional equivalent of a search warrant [“reasonable grounds” wasn’t probable cause; … Continue reading
GA: Where state constitution or statute are recognized to be susceptible to a broader interpretation than the 4A, appellant has to show why or how; otherwise, it’s waived
Defendant also relies on the state constitution as well as statute in addition to the Fourth Amendment. “However, Hinkson makes no argument that state law provides a rule substantively different as applied to this case from that of the Fourth … 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
N.D.Ind.: Defense counsel not ineffective for challenging state search under state constitution and not 4A too
Defense counsel was not ineffective for making a state constitutional challenge to his search and not a Fourth Amendment one. If anything, the state challenge would have potentially provided him a better chance at relief, but it ultimately didn’t. If … Continue reading
Massachusetts SJC revises and loosens its standard for claiming racial motivation for traffic stops under state constitution
Massachusetts SJC revises and loosens its standard for claiming racial motivation for traffic stops under state constitution. Commonwealth v. Long, 2020 Mass. LEXIS 520 (Sept. 17, 2020):
WA: Ruse text messages with known contact violated state REP
A ruse police text message exchange with defendant with one of his known contacts violated his reasonable expectation of privacy under the state constitution’s right of privacy. State v. Bowman, 2020 Wash. App. LEXIS 2463 (Sept. 8, 2020):
AK: Aerial surveillance of a residential backyard to photograph it with a telephoto lens violates the state constitution
Aerial surveillance of a residential backyard to photograph it with a telephoto lens violates the Alaska Constitution where the landowner took precautions to protect his privacy at ground-level. McKelvey v. State, 2020 Alas. App. LEXIS 71 (Sept. 4, 2020):
Cal.: Defense SDT for Facebook account of shooting victim remanded for reconsideration under standards of state constitution of victim’s privacy rights
In a California specific holding, a criminal defense subpoena to Facebook for a shooting victim’s Facebook account (private and public) made enough of a sufficient showing of necessity to get a remand for consideration of the factors that justify intrusion … Continue reading