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- N.D.Ala.: All parts of a SW are read in context, and that narrows it so it’s not overbroad
- WA: No immediate bail for DV arrest violates neither 4A nor due process
- S.D.N.Y.: Overseas seizure of Russian oligarch’s megayacht not governed by 4A
- CA7: No IAC in failure to more aggressively pursue Franks challenge
- CA9: Compelled use of fingerprint to open a cell phone didn’t violate 5A
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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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Monthly Archives: June 2014
NYT: Border Patrol Scrutiny Stirs Anger in Arizona Town
NYT: Border Patrol Scrutiny Stirs Anger in Arizona Town by Fernanda Santos ARIVACA, Ariz. — Every time Jack Driscoll drives the 32 miles from this remote outpost in southeastern Arizona to the closest supermarket, or to doctor’s appointments, or to … Continue reading
D.Ariz.: Police merely entering a hospital room to talk is not a “search”
There was no Fourth Amendment violation from an officer coming into defendant’s hospital room to talk to him because it wasn’t a search. Even so, defendant consented to the officer’s presence. United States v. John, 2014 U.S. Dist. LEXIS 86369 … Continue reading
N.D.Cal.: 4 a.m. knock-and-talk violated the implied license of curtilage
A 4 a.m. knock-and-talk violated the implied license of curtilage, even though the officers did not identify themselves as officers at first. [Excellent discussion of Jardines curtilage and implied license to a 4 a.m. visit by anybody.] United States v. … Continue reading
IN: The resisting law enforcement statute has to be construed to require the order to stop be lawful and be based on RS or PC
The Indiana resisting law enforcement statute has to be construed to require the order to stop be lawful and be based on reasonable suspicion or probable cause. On its face, it requires a person to stop even for unlawful orders, … Continue reading
N.D.Cal.: TOS agreement didn’t create an objective reasonable expectation of privacy
There is no reasonable expectation of privacy in one’s IP address from discovery by the government. Here, it was by the use of a packet sniffer. Also, the software’s terms of service might create a subjective expectation of privacy, but … Continue reading
RT.com: Facebook fighting against ‘largest ever’ govt data request in court
RT.com: Facebook fighting against ‘largest ever’ govt data request in court: Facebook is locked in a legal battle over a court ruling that forced the site to hand over data from almost 400 profiles to authorities. The social media site … Continue reading
DE: Out of possession landlord had no expectation of privacy in his rental property
“As an out of possession landlord and–subsequently–a former landlord, Mr. Walker would not have any expectation of privacy in any rental property he owned. That expectation of privacy would belong to the tenants at 637 Clymer Street. Further, Mr. Walker … Continue reading
OH2: Dive to floor on opening door was exigency
When the door to defendant’s hotel room was opened, his dive toward the floor was exigent circumstances where they already suspected he was armed. State v. Peck, 2014-Ohio-2820, 2014 Ohio App. LEXIS 2760 (2d Dist. June 27, 2014). Officers came … Continue reading
D.C.Cir.: False evidence for an arrest states a claim for relief
Plaintiff was a jail guard, and he was prosecuted for assaulting an inmate. Two years after the prosecution started he won. It was determined that the basis for the arrest was on knowing use of false evidence that he did … Continue reading
S.D.Fla.: GFE applies to overbreadth questions, too
A child pornography warrant was not overbroad as to the computers and a Dropbox account. Even it if was, the offending portion would be severed. Here, nothing was seized under the allegedly overbroad phrase. And, even if it was, the … Continue reading
WaPo: How accurate are historical cell-site records?
WaPo: How accurate are historical cell-site records? by Orin Kerr: Not very accurate, says Douglas Starr over at The New Yorker. An excerpt: If I make a cell call from Kenmore Square, in my home town of Boston, you might … Continue reading
NYTimes: Facebook Bid to Shield Data From the Law Fails, So Far
NYTimes: Facebook Bid to Shield Data From the Law Fails, So Far by Vindu Goel and James C. McKinley Jr.: In confidential legal documents unsealed on Wednesday, Facebook argues that Manhattan prosecutors last summer violated the constitutional right of its … Continue reading
Texas Lawyer: Talk to the Hand: Defense Seeks to Dismiss Lawsuit Alleging Recording of Attorney-Client Jailhouse Phone Calls
Texas Lawyer: Talk to the Hand: Defense Seeks to Dismiss Lawsuit Alleging Recording of Attorney-Client Jailhouse Phone Calls by Angela Morris: “The plaintiffs who are lawyers claiming to represent inmates in the Travis County detention facilities lack standing to assert … Continue reading
E.D.Tenn.: The day after Riley, Davis GFE saves a warrantless cell phone search despite no controlling case; this is just wrong
In February, the USMJ found the warrantless search of defendant’s cell phone unreasonable, but in Davis good faith [despite the lack of controlling law in support?]. The day after Riley, the USDJ finds that the search of a cell phone … Continue reading
OH10: Suppression motion arguing stop wasn’t valid doesn’t include whether frisk was reasonable; waived on appeal
The suppression argument that the stop was invalid doesn’t raise the issue of whether the frisk of defendant’s person was reasonable. Therefore, the frisk issue isn’t before the appeals court. Defendant even objected to testimony about the frisk. [¶ 10] … Continue reading
FL2: Order to truant to empty pockets was a full search that was unreasonable here
While an officer can patdown a truant before putting him in the police car, a full search is unauthorized without probable cause. Order to empty pockets was a full search. R.A.S. v. State, 2014 Fla. App. LEXIS 9575 (Fla. 2d … Continue reading
National Journal: Privacy Groups Sound the Alarm Over FBI’s Facial-Recognition Technology
National Journal: Privacy Groups Sound the Alarm Over FBI’s Facial-Recognition Technology by Dustin Volz: Advocates are pushing Attorney General Eric Holder to assess the privacy impact of the FBI’s controversial database that is expected to become fully operational later this … Continue reading
Politico: Phone ruling resonates in NSA fight
Politico: Phone ruling resonates in NSA fight by Josh Gerstein: The ruling could also give a boost to lawsuits challenging the NSA’s collection of phone call data.
WaPo: Massachusetts SWAT teams claim they’re private corporations, immune from open records laws
WaPo: Massachusetts SWAT teams claim they’re private corporations, immune from open records laws by Radley Balko: Unusual law enforcement counsels that operate the SWAT teams say they aren’t public entities.