Archives
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Recent Posts
- D.Utah: Police slow walked traffic stop without RS
- IA: Court ordered privilege review of search was at its expense
- D.Kan.: Preservation request under SCA isn’t a search or seizure
- UT: RS on a prior day was not RS for stop on day in question
- CA2: Ptf alleged invasion of privacy for 4A violation, and that’s enough
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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)
--Federal Laws Relating to Cybersecurity: Discussion of Proposed Revisions (2012)
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Section 1983 Blog -
"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: May 2015
VA: Dog sniff outside a motel room door did not violate Jardines or any REP
Applying a sensitive analysis of Dunn and Jardines and “other societal norms establishing an objectively reasonable expectation of privacy,” the court concludes that a dog sniff outside the door of a motel room is not at all like that of … Continue reading
MO: State AG civil investigative demands for third party records was valid under ECPA and Fourth Amendment; there is a remedy for overbreadth or burdensomeness
The trial court erred in quashing state AG subpoenas for business records that the businesses sought to protect for customer privacy. The state consumer protection civil investigative demands were valid under ECPA because it permits state subpoena. They were also … Continue reading
CA9: CP search warrant authorized second and third searches five years after the first search because gov’t still had computer
A second and third search of defendant’s computer for child pornography five years after the first one when defendant didn’t take a plea offer. That search was within the scope of the original warrant because the government still had the … Continue reading
MA: Flight and furtive movement to pants like holding a gun of a known felon RS
“Relying on DePeiza, we have held that collective factors, including the officer’s training and nine years’ experience in the district, the history of firearms in the neighborhood, the late hour, the defendant’s head movements, his continuous placement of his hand … Continue reading
Center for Investigative Reporting: Criminal suspects challenge legality of warrantless cellphone tracking
Center for Investigative Reporting: Criminal suspects challenge legality of warrantless cellphone tracking by Ali Winston: Four men charged in federal court with attempted murder in the shooting of an Oakland, California, police officer in 2013 are seeking to have evidence-–including … Continue reading
NPR: With Live Video Apps Like Periscope, Life Becomes Even Less Private
NPR: With Live Video Apps Like Periscope, Life Becomes Even Less Private with Laura Sydell: Cameras are ubiquitous — from the ones in our cellphones to the security cams in parking lots and shops. And just when you thought it … Continue reading
Popular Science: What the Justice Department’s New Drone Rules Mean for Your Privacy
Popular Science: What the Justice Department’s New Drone Rules Mean for Your Privacy by Kelsey D. Atherton: More Paper Work for Special Agents, More Privacy for You
NJ.com: The Patriot Act: A debate that’s dangerous for Chris Christie
NJ.com: The Patriot Act: A debate that’s dangerous for Chris Christie by Paul Mulshine:
IL finds Karo/Knotts strong enough to invoke Davis good faith to a pre-Jones GPS installation (creating a conflict)
The GPS device in this case was put on defendant’s vehicle three years before Jones. Karo and Knotts were strong enough an indication that it was lawful that the Davis good faith exception would be applied to save the search. … Continue reading
D.Neb.: Defendant was clearly not free to leave and his 30 minute questioning was unreasonable and not even de minimus as in Rodriguez
The stop here was overlong under Rodriguez, but, of course, happened before. Here, however, the defendant was told he was free to leave, but the court finds that “There is no doubt that the defendant did not feel he was … Continue reading
CA7: An unspecific motion to suppress led to forfeiture of arguments for appeal
Defendant was arrested at his home on probable cause but without a warrant in 2011 for a 2007 double murder. (Every judge thereafter concluded that there was, in fact, no probable cause.) At the time of arrest, defendant came out … Continue reading
ID: For stop of a person in proximity to searched premises, courts have to evaluate the layout, size of premises, and where it happened
Applying Summers and Bailey, defendant approached a four unit apartment building as police were executing a search warrant, and he was properly detained. The size of the apartment building and his proximity made it reasonable. It turned out that defendant … Continue reading
CA6: Motion to compel discovery of software used to search computer on P2P network properly denied
In a child pornography case, the district court properly denied discovery of “law enforcement tools … [used] to assess information in connection with the particular GUID … associated with Mr. Pirosko’s computer equipment” to show how they found it and … Continue reading
LATimes via MSN: Privacy often trumps transparency with police shooting videos
LATimes via MSN: Privacy often trumps transparency with police shooting videos by Richard Winton: Cameras mounted inside patrol cars captured every moment. With their guns drawn, Gardena, Calif., police officers screamed instructions at three men on the sidewalk. The officers … Continue reading
NY Times: Obama Weighs Strategy as Data Laws Run Out
NY Times: Obama Weighs Strategy as Data Laws Run Out by Charlie Savage: The Obama administration is weighing what the looming expiration of three counterterrorism laws — including the provision that has been cited to allow the National Security Agency … Continue reading
WaPo: Kentucky conflict? Paul, McConnell start to clash [over NSA]
WaPo: Kentucky conflict? Paul, McConnell start to clash [over NSA] by Mike DeBonis: The GOP senators’ clash on surveillance suggests that Rand Paul’s 2016 hopes loom over the “tight” bond described by Senate Majority Leader Mitch McConnell. [And they are … Continue reading
FL1: Failure to show exigency or get SW for realtime CSLI required suppression
Defendant had a reasonable expectation of privacy as to his realtime cell phone location information, and the failure of the police to get a search warrant or show exigent circumstances requires suppression. Herring v. State, 2015 Fla. App. LEXIS 7750 … Continue reading
KS: Reasonable mistake of fact found from speeding stop where defendant wasn’t actually speeding
Defendant was stopped for going 28 in what the officer fairly believed was a 20 zone, “‘more years than anyone knew.’” The officer was a life long resident of the city. In reality, the speed limit had been raised to … Continue reading
IL follows Heien in a stop under an ambiguous traffic code section; it was a reasonable mistake of law
The court grapples at length with whether a trailer hitch blocking a LPN is an offense and concludes that the statute is ambiguous, and the defendant can’t be convicted for that traffic offense. On the larger question, however, the court … Continue reading