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Recent Posts
- LA4: Merely having a concealed firearm isn’t RS for a frisk
- OR: Merely driving off the road wasn’t RS, but adding the driver’s demeanor at the time was
- OH6: Trial court’s failure to explain RS under Rodriguez required remand
- CA6: Asking def before a patdown during arrest what he had on him wasn’t barred by Miranda
- NY Queens: PC shown for SW blood drawn at hospital after car wreck
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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: Third Party Doctrine
DC: Petr’s debit card records are basic third-party records under Miller and aren’t protected under Carpenter
Debit card financial records are basic third party records, like the bank records in Miller, and Carpenter offers no protection to the petitioner despite his claim of privacy interest in the information. And, if it did, the good faith exception … Continue reading
CA11: Including omitted information under Franks still left PC
The omission here was not a Franks violation. “Here, even if Jackson’s statement had been included in the affidavit, it would not have tipped the balance. The officers still would have had probable cause to search the home, because the … Continue reading
VICE: Cars Have Your Location. This Spy Firm Wants to Sell It to the U.S. Military
VICE: Cars Have Your Location. This Spy Firm Wants to Sell It to the U.S. Military by Joseph Cox (“15 billion car locations. Nearly any country on Earth. ‘The Ulysses Group’ is pitching a powerful surveillance technology to the U.S. … Continue reading
WaPo: ICE investigators used a private utility database covering millions to pursue immigration violations
WaPo: ICE investigators used a private utility database covering millions to pursue immigration violations by Drew Harwell (“Government agencies increasingly are accessing private information they are not authorized to compile on their own.”)
Techdirt: Treasury Oversight Says IRS Should Consider Getting Warrants Before Buying Location Data From Data Brokers
Techdirt: Treasury Oversight Says IRS Should Consider Getting Warrants Before Buying Location Data From Data Brokers by Tim Cushing (“Last October, Senators Ron Wyden and Elizabeth Warren asked the IRS’s oversight to take a look at the agency’s use of … Continue reading
Nothing online is completely private: Parler data dump of “ethically hacked posts”
NYTimes: How Parler Reveals the Alarming Trajectory of Political Violence by Candace Rondeaux and Heather Hurlburt:
W.D.N.C.: Def counsel not ineffective for not arguing Carpenter protects bank records because it doesn’t
There is no reasonable expectation of privacy in bank records such that the government needed a warrant to get them. Defense counsel wasn’t ineffective for not arguing that there was such an interest. “Carpenter did not overrule Miller but merely … 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):
CA3: No REP in cell phone subscriber records
There is no reasonable expectation of privacy in cell phone subscriber information such that a warrant is required to obtain it v. a subpoena duces tecum. United States v. Brooks, 2020 U.S. App. LEXIS 40561 (3d Cir. Dec. 29, 2020). … Continue reading
CA11: No REP in one’s email address held by IP company under third-party doctrine
“This appeal requires us to decide whether the government needed a warrant to obtain a criminal suspect’s email address and internet protocol addresses from a third party’s business records. It also requires us to decide whether probable cause supported a … Continue reading
Filter: DEA Pursues Vast Expansion of Patient Surveillance
Filter: DEA Pursues Vast Expansion of Patient Surveillance by Sessi Kuwabara Blanchard (“The Drug Enforcement Administration (DEA) is looking to expand its anti-diversion surveillance infrastructure by being able to search and analyze myriad patient behaviors for the vast majority of … Continue reading
CA11: Carpenter doesn’t require SW for prescription drug monitoring program records
In this pill mill case, Carpenter provides no protection for third party records and information in the Florida Prescription Drug Monitoring Program (PDMP). United States v. Gayden, 2020 U.S. App. LEXIS 32030 (11th Cir. Oct. 9, 2020):
techdirt.com: Secret Service Latest To Use Data Brokers To Dodge Warrant Requirements For Cell Site Location Data
techdirt.com: Secret Service Latest To Use Data Brokers To Dodge Warrant Requirements For Cell Site Location Data by Tim Cushing (“Another federal law enforcement agency has figured out a way to dodge warrant requirements for historical cell site location data. … Continue reading
Engadget: Secret Service bought location data pulled from common apps
Engadget: Secret Service bought location data pulled from common apps by Christine Fisher:
techdirt: The FBI Is Abusing The All Writs Act To Gain Access To Millions Of Travel Records
techdirt: The FBI Is Abusing The All Writs Act To Gain Access To Millions Of Travel Records by Tim Cushing:
CA5: Bitcoin transactions are like third-party bank records with no REP
Bitcoin transactions are akin to third-party bank records and are not governed by Carpenter. There is no added reasonable expectation of privacy in them. United States v. Gratkowski, 2020 U.S. App. LEXIS 20501 (5th Cir. June 30, 2020). The vehicle … Continue reading
AP: Michigan voters to decide on data protections in November election
AP: Michigan voters to decide on data protections in November election (“A state constitutional amendment to designate electronic communication and data as personal property has made it onto the November ballot. If passed, the amendment would put the same protections … Continue reading
NM declines to adopt third-party doctrine in bank records under state constitution
“In this opinion we address whether, pursuant to Article II, Section 10 of the New Mexico Constitution, defendants Ismael and Angela Adame (the Adames) had a reasonable expectation of privacy in personal financial records maintained by their banks. We hold … Continue reading
D.Mass.: BitTorrent software still subject to third-party doctrine despite its technical sophistication
Defendant claims that BitTorrent downloading is so sophisticated that the third-party doctrine of Smith and Miller should not apply. The court takes the argument seriously but rejects it. Carpenter doesn’t undermine the third-party doctrine, and the motion to suppress is … Continue reading
Justia: The Third-Party Doctrine vs. Katz v. United States
Justia: The Third-Party Doctrine vs. Katz v. United States by Sherry F. Colb: