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- CA7: Jail officials holding plaintiff under a valid court order aren’t liable for not releasing him sooner after a sentencing error
- Volokh: Do Fourth Amendment Protections Change When Property Is Moved?
- M.D.Pa.: Def was neither shipper nor recipient of USPS parcel, so he had no standing in it
- WI: Obtaining def’s DNA by ruse wasn’t an illegal search
- WaPo: Apple, Google and Venmo fight new U.S. plan to monitor payment apps
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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)
--Outline of Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012)
--Federal Statutes Governing Wiretapping and Electronic Eavesdropping (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
CA8: Patel didn’t bar police requesting look at hotel registry in looking for bank robbers; third-party doctrine applies
City of Los Angeles v. Patel didn’t make the police look at a hotel registry a search. Defendants were suspected of bank fraud and aggravated identity theft in printing bogus checks and cashing them. Police went to a motel where … Continue reading
AZ CoA finds REP in IP information under state constitution where 4A would not
While the Fourth Amendment’s third party doctrine does not recognize a reasonable expectation of privacy in IP information, the court concludes that the state constitution does (and it follows several other states rejecting Miller and Smith on some basis). State … Continue reading
CA1: Police chief’s order to officer to turn over cellphone and home phone records not a constitutional violation under third-party doctrine; chief gets qualified immunity
Plaintiff is a police officer, and the chief ordered production of his cell phone and home phone records in an internal investigation. The chief gets qualified immunity because of the third party doctrine. Those records were obtainable by subpoena from … Continue reading
Fix Congress First: Federal Government Seizure of President Trump’s New York State Individual Tax Returns is Most Likely a Violation of the Fourth Amendment
Fix Congress First: Federal Government Seizure of President Trump’s New York State Individual Tax Returns is Most Likely a Violation of the Fourth Amendment by Don Suarez, arguing that Carpenter applies: “We hold only that a warrant is required in … Continue reading
S.D.N.Y.: IP information does not provide anywhere near the “granular” detail that CSLI or GPS information does, so SW not required
IP information does not provide anywhere near the “granular” detail that CSLI or GPS information does, so a search warrant is not required. United States v. Kidd, 2019 U.S. Dist. LEXIS 114627 (S.D. N.Y. July 11, 2019) (citing United States … Continue reading
GA: No REP in a police interview room where a call was overheard and recorded
There is no reasonable expectation of privacy in a police interview room. Defendant had been Mirandized and left alone in the room, knowing he was not free to leave, and told he was a suspect in a crime. He made … Continue reading
PA: ID made as a result of warrantless search suppressed, but that which was seen before may be testified to
An officer’s identification made wholly as a result of a warrantless search renders that identification tainted and inadmissible. If, however, eyewitness identification of a defendant occurred prior to illegal conduct by law enforcement may be admissible, if based on observations … Continue reading
Conservative HQ: Obama-Appointed Judge Allows Democrats To Subpoena Trump Business Records [a 2019 political take on the third-party doctrine]; opinion
Conservative HQ: Obama-Appointed Judge Allows Democrats To Subpoena Trump Business Records. In a ruling that should chill the heart of every American who values his Fourth Amendment rights, Obama-appointed DC District Court Judge Amit Mehta has refused to quash a … Continue reading
D.Minn.: Gov’t proved exigency for warrantless cell phone ping
Defendant’s cell phone was pinged based on exigency. Defendant claims that it was false. “However, the salient facts on which Sgt. O’Rourke based his request are clearly borne out by the evidence.” United States v. Andrews, 2019 U.S. Dist. LEXIS … Continue reading
Law.com: ‘Carpenter’ Squared: Review and Reconcile State Court Cases Impacted by Landmark SCOTUS Decision
Law.com: ‘Carpenter’ Squared: Review and Reconcile State Court Cases Impacted by Landmark SCOTUS Decision by Peter A. Crusco In his Cyber Crime column, Peter A. Crusco writes: Now that the initial dust raised by ‘Carpenter’ has settled, it is illuminating … Continue reading
CA1 again holds that IP information is third party information not governed by Carpenter
First Circuit again holds that IP information is third party information not governed by Carpenter. United States v. Morel, 2019 U.S. App. LEXIS 11457 (1st Cir. Apr. 19, 2019):
N.D.Ga.: IP information is not governed by Carpenter
IP information is not governed by Carpenter. “Obtaining information from Kik, Sprint, and Comcast did not allow law enforcement to track Defendant Jenkins’s physical location over an extended period. At most, it allowed them a lead in identifying him — … Continue reading
MO: No REP in third-party communications with Google and Craiglist
Defendant “fails to demonstrate that he had a legitimate expectation of privacy in the communications he voluntarily delivered to unknown third parties using Google and Craigslist.” State v. Demark, 2019 Mo. App. LEXIS 446 (Apr. 2, 2019). The search warrant … Continue reading
CA1: SCA emergency request for Kik app customer info didn’t implicate Carpenter concerns
The government used an emergency application for user data from the Kik app after learning that defendant was allegedly sending child pornography to children through it. The information was nowhere near the quality and intrusiveness of the information in Carpenter, … Continue reading
techdirt: Utah Senate Passes Bill That Would Lock The Government Out Of Warrantless Access To Third Party Records
techdirt: Utah Senate Passes Bill That Would Lock The Government Out Of Warrantless Access To Third Party Records by Tim Cushing: Perhaps no state has unrolled and rolled up a welcome mat set out for a federal guest faster than … Continue reading
S.D.N.Y.: AirBnB can’t block all discovery of customer’s third-party records
In AirBnB’s case against NYC, the city gets discovery of some of AirBnB’s customer records because it is third-party information subject to disclosure at least to determine the extent of an expectation of privacy. AirBnB, Inc. v. City of New … Continue reading
CA9: While there was no basis for def’s stop, his and his passenger’s flight after stopping was an intervening circumstance
The court agrees that there was no basis for defendant’s traffic stop, but, after defendant stopped the car, his passenger bailed out of the car and ran, and then defendant took off and went another two miles before he was … Continue reading
D.Ariz.: Carpenter doesn’t change the third-party doctrine as to IP information
Carpenter doesn’t change the third-party doctrine as to IP information. United States v. McCutchin, 2019 U.S. Dist. LEXIS 36811 (D. Ariz. Mar. 7, 2019). The affidavits “are somewhat thin,” but this is deferential, not de novo, review, and, while this … Continue reading
D.V.I.: “Premises” includes the curtilage
The premises for a search warrant includes the curtilage, and drugs found hidden outside the house on the curtilage just a few feet from the house were properly seized. United States v. Dowling, 2019 U.S. Dist. LEXIS 34956 (D. V.I. … Continue reading
The Federalist Society: Justice Gorsuch, Carpenter, & the Fourth Amendment
The Federalist Society: Justice Gorsuch, Carpenter, & the Fourth Amendment [POLICYbrief] by Ashley Baker: