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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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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: Third Party Doctrine
E.D.Tenn.: Walmart Pay records do not require SW
A search warrant isn’t needed for investigators to access information from Walmart Pay. Carpenter doesn’t apply. United States v. Whipple, 2022 U.S. Dist. LEXIS 153126 (E.D. Tenn. Aug. 25, 2022). A claim that the officer presented false information to get … Continue reading
CA1: Suit v. IRS for third-party records retention might state claim, remanded
The taxpayer’s third-party financial records suit was not barred by the Anti-Injunction Act. It was not against collection of a tax, but the government retaining records. Remanded to consider other issues as well. Harper v. Rettig, 2022 U.S. App. LEXIS … Continue reading
Reason: Houston Says Businesses Must Install Surveillance Cameras and Cops Can View Footage Without a Warrant
Reason: Houston Says Businesses Must Install Surveillance Cameras and Cops Can View Footage Without a Warrant by Elizabeth Nolan Brown:
M.D.Tenn.: Copies of what were notarized kept by the notary are third-party records
Defendant had documents notarized at a Nashville law office where the practice of the lawyer-notary, not required by law, to copy what was notarized, and they did it for free. The government found out about it and subpoenaed the records. … Continue reading
CA3: Bank records still have no REP under Carpenter
Defendant’s bank records were subject to the third-party doctrine which was not changed by Carpenter. United States v. Hall, 2022 U.S. App. LEXIS 6425 (3d Cir. Mar. 14, 2022):
CA1: Third-party doctrine applies to prescription drug monitoring program
This is an action to enforce a DEA administrative subpoena to the New Hampshire Prescription Drug Monitoring Program for specific prescriptions. The court declines to equate prescription records with other medical records because the pharmacy industry is closely regulated. It … Continue reading
New York Daily News: Is our government buying our data? We need a federal investigation.
New York Daily News: Is our government buying our data? We need a federal investigation. by Elizabeth Holtzman and Mark Udall (Nov. 18, 2021) (“Tech companies, eager to sell us ads, promise to anonymize any of our shared data, a … Continue reading
Crypto currency now subject to 26 U.S.C. § 6050i reporting like cash. Any 4A implications? No.
See Quartz: The infrastructure bill makes crypto tax-reporting failures a felony by Scott Nover. Cryptocurrency is added in to 26 U.S.C. § 6050i on cash or cash equivalent transactions. The writer poses a Fourth Amendment question: The requirements could violate … Continue reading
Cato: Why Don’t Americans Have Stronger Financial Privacy Rights?
Cato: Why Don’t Americans Have Stronger Financial Privacy Rights? by Nicholas Anthony (“The announcement that the Biden administration proposed a $600 (now $10,000) threshold for bank account surveillance has left many people on social media wondering how such a proposal … Continue reading
E.D.Wash.: No REP in an ISP’s mere subscriber records
There is no reasonable expectation of privacy in an ISP’s mere subscriber records. “The Government points out that it received Defendant’s name, address and telephone number as the subscriber of the subject IP address, but did not request or receive … Continue reading
Ocala Post: Biden wants IRS to snoop into your bank account, know when you have $600 or more; some bankers say it violates the 4A (but it doesn’t)
Ocala Post: Biden wants IRS to snoop into your bank account, know when you have $600 or more (“Outraged citizens and banks alike want to know why President Joe Biden plans to allow the IRS to snoop into bank accounts, … Continue reading
CA7: Pen register to track IP address in cyberattack investigation governed by third-party doctrine and not Carpenter
The use of a pen register order to track IP address in cyberattack investigation governed by third-party doctrine and not Carpenter. United States v. Soybel, 19-1936 (7th Cir. Sept. 8, 2021):
S.D.Ind.: IU’s CrimsonCard key card system has no REP in user movements
Indiana University’s CrimsonCard, a key card, that tracks movement into University buildings and facilities, does not carry a reasonable expectation of privacy. This case arose from an investigation of a hazing incident, and the University was corroborating alleged alibis. There … Continue reading
Raw Story: Mo Brooks bellyaches about Congress seizing his phone records: ‘They should not have access to anything’
Raw Story: Mo Brooks bellyaches about Congress seizing his phone records: ‘They should not have access to anything’ by David Edwards:
N.D.Cal.: Officer accessing Automated License Plate Reader database not unreasonable search
An Oakland officer’s accessing the local Automated License Plate Reader (ALPR) database was not an illegal search nor a violation of the Fourth Amendment. That information helped to provide information to enable police to apply for a GPS tracking warrant … Continue reading
MA: No REP in MBTA fare card information and station videos that put def near scene of murder
The third-party doctrine should not be mechanically applied to MBTA (CharlieCard) fare card information under this court’s precedents. Nevertheless, there was no subjective reasonable expectation of privacy in the information. It only tracked his movements on the transit system, not … Continue reading
N.D.Ill.: Carpenter did not signal SCOTUS’s abandonment of the third party doctrine
Carpenter did not signal SCOTUS’s abandonment of the third party doctrine to non-CSLI. United States v. Osadzinski, 2021 U.S. Dist. LEXIS 141637 (N.D.Ill. July 29, 2021)*: