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- D.N.M.: DEA’s failure to make a detailed inventory in violation of policy doesn’t require exclusion of evidence
- WaPo: These cities bar facial recognition tech. Police still found ways to access it.
- C.D.Cal.: SW materials in case with weighty public interest ordered unsealed
- DC: Accepting a law license is consent to trust account subpoenas
- AR: RS def rented a hotel room was sufficient for search waiver; PC not required
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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: February 2015
Cal.4th: Davis GFE applies to pre-McNeely blood testing
California’s 4th District applies Davis good faith exception to pre-McNeely blood testing. People v. Harris, 2015 Cal. App. LEXIS 154 (4th Dist. February 19, 2015):
DE: SW execution in the community-living situation
Defendant lived in a house that several people shared, but it wasn’t apparent to the police who got the search warrant. There were no “barriers” on the inside, other than doors, that suggested separate living quarters, and the “do not … Continue reading
OH12: Plain smell came from patdown that squeezed bag of MJ that gave off odor
Plain feel supported seizure of marijuana baggie which gave off an odor when pressed during defendant’s otherwise valid patdown. Plain feel did not support seizure of cash in another pocket. However, it was not suppressed because discovery was inevitable by … Continue reading
E.D.Wis.: Where a business and the apt over it shared an IP address, SW for business was overbroad, but saved by GFE
Where the evidence showed that a business and an apartment shared an IP address, the affidavit for the search warrant for the business for child pornography traced back to that IP lacked probable cause. However, the good faith exception saves … Continue reading
D.Kan.: There must be a search protocol for cell phone searches to prevent general searches
There must be a search protocol for cell phone searches to prevent general searches. In re Cellular Telephones, 2014 U.S. Dist. LEXIS 182165 (D.Kan. December 30, 2014). This is an important opinion, and it’s free online:
S.D.W.Va.: CP hunting software doesn’t have to be shown to be 100% reliable for PC
Child pornography targeting software doesn’t have to be shown to be all that reliable to establish probable cause for a search warrant. United States v. Naylor, 2015 U.S. Dist. LEXIS 19760 (S.D.W.Va. February 19, 2015) [Look, if a 25% reliability … Continue reading
E.D.Mich.: If you decorate your walls with child porn, calling 911 not a good idea
This pretty much sums it all up: “Defendant Tilman Williams chose to decorate his apartment with sexually explicit photographs of young girls. In doing so, he assumed serious risks. One such risk: if he had a medical emergency and allowed … Continue reading
Washington Times: FBI surveillance tactics jeopardized by fight over NSA phone snooping program
Washington Times: FBI surveillance tactics jeopardized by fight over NSA phone snooping program by Phillip Swarts: Congressional discord may cause the FBI to lose its ability to collect hotel bills, credit card slips and other “tangible things” they use to … Continue reading
D.Alaska: It was reasonable to seize a store where heroin was being sold pending getting a SW
Officers could enter a store where heroin sales were allegedly occurring to seize the store. They told the defendant to put down his phone, and that was reasonable to preserve evidence. A call came in to the phone and the … Continue reading
Slate: Google Says Proposed DoJ Warrant Tweaks Are “Monumental” Fourth Amendment Violation
Slate: Google Says Proposed DoJ Warrant Tweaks Are “Monumental” Fourth Amendment Violation by Lily Hay Newman: The Department of Justice has been working to revise a federal criminal procedure rule to make it easier for judges to issue search warrants … Continue reading
The Intercept: FBI Flouts Obama Directive to Limit Gag Orders on National Security Letters
The Intercept: FBI Flouts Obama Directive to Limit Gag Orders on National Security Letters by Dan Froomkin: Despite the post-Snowden spotlight on mass surveillance, the intelligence community’s easiest end-run around the Fourth Amendment since 2001 has been something called a … Continue reading
AR: Anonymous tip def was in a hotel room was insufficient under Payton for entry on arrest warrant
Defendant was wanted for bank robbery, and the police had an arrest warrant. In a case of first impression, an anonymous tip that defendant was in a hotel room was not enough to base an entry on the arrest warrant … Continue reading
CT: Refusal to cooperate with SW for DNA swab admissible to show consciousness of guilt
While one can refuse a consent search, refusal to cooperate with a search warrant can be used as evidence of guilt; here an attempt to take DNA by search warrant, all captured on video. It was relevant as showing defendant’s … Continue reading
D.Mass.: Frisk justified of a known gang member in a high crime area getting out of car with his hand in his pocket
Defendant was in a high crime area and known to be a member of a violent street gang. When he got out of a vehicle with a hand in his coat pocket, a frisk was justified. United States v. Vargas, … Continue reading
The Register (UK): Google strongly opposes plans to let ANY US COURT authorise digi-snoops
The Register (UK): Google strongly opposes plans to let ANY US COURT authorise digi-snoops: Google has strongly opposed US government plans to expand federal powers to authorise remote searches of digital data – claiming in a letter the powers will … Continue reading
EFF to Supreme Court: The Fourth Amendment Covers DNA Collection
EFF to Supreme Court: The Fourth Amendment Covers DNA Collection: San Francisco – People have a Fourth Amendment right to privacy when it comes to their genetic material, the Electronic Frontier Foundation (EFF) argues in an amicus brief filed this … Continue reading
Jurist: Why Collection of Arrestee DNA Violates the Fourth Amendment
Jurist: Why Collection of Arrestee DNA Violates the Fourth Amendment by Christen Giannaros: The twelfth author in a twelve-part series from the staffers of the Journal of Civil Rights and Economic Development. Giannaros discusses the Fourth Amendment rights violations implicit … Continue reading