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Recent Posts
- AR: RS def rented a hotel room was sufficient for search waiver; PC not required
- LA5: No standing to challenge search of shooting victim’s cell phone in def’s possession
- N.D.Okla.: Cell phones possessed by tribal police not subject to return under Rule 41(g)
- E.D.Ark.: Landlord and tenant refused rental property inspection and SW was validly issued and protected privacy interests
- D.D.C.: Judge shopping after denial of SW inappropriate; could have appealed to DJ
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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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--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: Cell site location information
AZ: Ex parte order in 2013 for CSLI showed PC and was constitutionally sufficient and it would be served in NJ
An ex parte court order for CSLI five years before Carpenter, and probable cause was shown. It was the functional equivalent of a search warrant. It also could be served on T-Mobile in New Jersey. State v. Conner, 2020 Ariz. … Continue reading
N.D.Ind.: Def’s claim the warrant for his Facebook account is akin to Carpenter and CSLI fails as completely speculative and an admitted “guess”
United States v. Cox, 2020 U.S. Dist. LEXIS 97326 (N.D. Ind. June 3, 2020):
CA10: Admission of CSLI evidence requires a witness for confrontation purposes
CSLI information obtained by warrant still requires a witness to explain them for confrontation purposes. State v. Lawson, 2020-Ohio-3004, 2020 Ohio App. LEXIS 1952 (10th Dist. May 19, 2020). Defense counsel wasn’t ineffective for not moving to suppress CSLI three … Continue reading
NE: Indicia linking def to premises searched could be subject of SW; affidavit didn’t need a detailed explanation of CODIS for magistrate
Obtaining defendant’s CSLI in February 2017, 16 months before Carpenter, was in good faith and reasonable. That information could thus be used in an affidavit for search warrant for his house because probable cause was otherwise shown for it. Also, … Continue reading
CA5: 4 questions in 35 seconds at immigration checkpoint were reasonable
Four questions in 35 seconds at an immigration checkpoint were reasonable and for immigration purposes, not general crime control. United States v. Avery, 2020 U.S. App. LEXIS 15034 (5th Cir. May 11, 2020). A random LPN check showed the owner’s … Continue reading
NY3: Even if CSLI was wrongly obtained, it was harmless error
Assuming, without deciding, that obtaining defendant’s CSLI in a knife attack case was unreasonable, it was harmless error on this record. Plenty of other evidence connected him. People v. Perez, 2020 NY Slip Op 02684, 2020 N.Y. App. Div. LEXIS … Continue reading
MO: Search incident of a McDonald’s sack in a car for shoplifting a sweatshirt was unreasonable
Defendant was stopped in a shopping center parking lot for suspicion of shoplifting a sweatshirt. He consented to a frisk of his person and car, and nothing was found. Another officer arrived, and he was de facto arrested. A search … Continue reading
D.Colo.: DEA subpoena for records of two pharmacies is enforced
The DEA’s subpoena to the Board of Pharmacy for controlled substances prescriptions for two pharmacies was reasonable and within the DEA’s jurisdiction. It is enforced. United States DOJ v. Colorado Bd. of Pharmacy, 2020 U.S. Dist. LEXIS 69726 (D. Colo. … Continue reading
CA8: SW to seize a car implicitly includes seizing the keys to it
A search warrant to seize a car implicitly includes seizing the keys to it. “Thiel also maintains that Baker and Minor went too far in executing the second warrant when they seized antique handguns, handguns in unopened boxes, and gun … Continue reading
CA5: Statute of limitations for malicious prosecution starts at acquittal
“As should be apparent, Winfrey controls. Since Fusilier is challenging ‘an unlawful [detention] pursuant to a warrant’ that the defendants caused to be issued because of ‘misstatements,’ Fusilier’s claim best fits with a malicious prosecution analogy. Winfrey, 901 F.3d at … Continue reading
Law.com: Understanding the Privacy Implications of Digital Technology
Law.com: Understanding the Privacy Implications of Digital Technology by Leonard Deutchman (“In this month’s article, we will examine the Superior Court’s reasoning in Dunkins and compare it to the U.S. Supreme Court’s reasoning in Carpenter. As with so many Fourth … Continue reading
NJ: GSR subject to search incident
Swabbing defendant’s hands for GSR at the police station shortly after arrest was valid as a search incident. The detectives called the assistant state’s attorney on duty, and he advised that they didn’t need a warrant because of the ready … Continue reading
CA2: Eyewitness report and identification of ptf was probable cause for arrest
Eyewitness report and identification was probable cause for arrest, so summary judgment was proper for the officer. Tortora v. City of New York, 2020 U.S. App. LEXIS 8135 (2d Cir. Mar. 12, 2020).* The court credits the officers’ testimony that … Continue reading
WaPo: U.S. government, tech industry discussing ways to use smartphone location data to combat coronavirus
WaPo: U.S. government, tech industry discussing ways to use smartphone location data to combat coronavirus by Tony Romm, Elizabeth Dwoskin, and Craig Timberg (“The U.S. government is in active talks with Facebook, Google and a wide array of tech companies … Continue reading
techdirt: Florida PD’s Reverse Warrant Leads To Innocent Man Being Targeted In A Robbery Investigation
techdirt: Florida PD’s Reverse Warrant Leads To Innocent Man Being Targeted In A Robbery Investigation by Tim Cushing (“Cops are using reverse warrants with increasing frequency, inverting the usual investigation process by demanding info about everyone in a certain area … Continue reading
Vice: COVID-19 Could Provide Cover for Domestic Surveillance Expansion
Vice: COVID-19 Could Provide Cover for Domestic Surveillance Expansion by Karl Bode (“The use of location data to help track and manage the pandemic should come with meaningful safeguards and expiration dates, privacy experts say.”)
Vox: Reset Podcast: When your phone links you to a crime
Vox: Reset Podcast: When your phone links you to a crime produced by Recode and Stitcher (“Every story is a tech story. We live in a world where algorithms drive our interests, scientists are re-engineering our food supply, and a … Continue reading
TX: CSLI for 23 days in 2012 without any possible showing of PC or exigency was unreasonable
CSLI for 23 days in 2012 without any possible showing of probable cause or exigency was unreasonable under the Texas Constitution as well as the Fourth Amendment. Remanded for harmless error analysis. Holder v. State, 2020 Tex. Crim. App. LEXIS … Continue reading
OK: Two hours of CSLI in 2012 not excluded
Two hours of CSLI in 2012 to connect defendant to a capital murder was not subject to the exclusionary rule. Carpenter n.3 in 2018 left open this situation. Fuston v. State, 2020 OK CR 4, 2020 Okla. Crim. App. LEXIS … Continue reading