Archives
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Recent Posts
- MO: Initial bail setting under Gerstein not adversarial
- D.Alaska: Protective sweep after def’s arrest not justified, but there was exigency otherwise
- D.Colo.: Four day delay in getting SW for seized car wasn’t unreasonable
- FL3: Cell phone dump in civil case denied; no showing of need
- E.D.Va.: Must plead prejudice when delay of a cell phone SW is alleged
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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,
citations, and links -
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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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"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 2015
D.S.D.: Entry to backyard to get trash violated curtilage; trash is a collection of information until it is abandoned
The trash receptacle here was by the back door and window, and entry to the backyard to retrieve the trash was an entry onto the protected curtilage. Until the trash is put out for collection, the container is a receptacle … Continue reading
D.Kan.: Heien relieves a federal court of having to make fine distinctions about whether state traffic law was validated
Heien relieves a federal court of having to make fine distinctions about whether state traffic law was validated: The question is whether the officer’s view was reasonable. [Again, close enough for government work.] United States v. Morales, 2015 U.S. Dist. … Continue reading
International Business Times: Police Brutality 2015: Des Moines, Iowa Officer Colin Boone Gets 5 Years In Prison For Kicking Man In Head During Arrest
International Business Times: Police Brutality 2015: Des Moines, Iowa Officer Colin Boone Gets 5 Years In Prison For Kicking Man In Head During Arrest by Aaron Morrison: A former Des Moines, Iowa, police officer convicted of violating the civil rights … Continue reading
The Guardian: Google eavesdropping tool installed on computers without permission
The Guardian: Google eavesdropping tool installed on computers without permission by Samuel Gibbs: Privacy campaigners and open source developers are up in arms over the secret installing of Google software which is capable of listening in on conversations held in … Continue reading
Legal Intelligencer: IPad Texts Not Private Under Wiretap Act
Legal Intelligencer: IPad Texts Not Private Under Wiretap Act by Max Mitchell: An iPad does not fall within the telephone exemption under the Pennsylvania Wiretapping and Electronic Surveillance Control Act, and users of the device do not have a reasonable … Continue reading
CA10: CI testified in 2255 there was no controlled buy supporting search warrant which Dist.Ct. credits; gun conviction set aside
The District Court held that there was a fraud on the court exception to AEDPA and set aside one of defendant’s convictions based on false evidence of a controlled buy by an informant related in a search warrant. The informant … Continue reading
OH: Township officers have no statutory authority to patrol interstates for drugs; violation of statute here violated state constitution
A township officer has no statutory authority to work drug interdiction on an interstate highway. Because statute didn’t authorize the stop, the appellate court properly suppressed under the state constitution. State v. Brown, 2015-Ohio-2438, 2015 Ohio LEXIS 1558 (June 23, … Continue reading
OH5: Being on porch waiting for keys before 8 pm was not a nighttime search
The daytime search provision is 7 am to 8 pm. Officers were on defendant’s porch before 8 pm and were waiting for keys rather than force entry. They complied with the rule. State v. Harris, 2015-Ohio-2480, 2015 Ohio App. LEXIS … Continue reading
Daily Iberian: Jindal nixes tool for police
Daily Iberian: Jindal nixes tool for police by Jeff Zeringue Louisiana Gov. Jindal vetoed a bill with veto-proof majorities allowing license plate scanners, but the legislature adjourned. He was concerned about privacy.
IN adopts “new crime exception” under state constitution; illegal search doesn’t immunize battery on police officer
“Many state and federal courts have applied an exception to the Fourth Amendment’s exclusionary rule called the new-crime exception. This exception provides that notwithstanding a strong causal connection in fact between an illegal search or seizure by law enforcement and … Continue reading
SF Chronicle: S.F. study finds big disparity in arrest rates between races
SF Chronicle: S.F. study finds big disparity in arrest rates between races by Kale Williams and Vivian Ho: Black people are disproportionately represented throughout the criminal justice system in San Francisco, from arrest to booking in jail to conviction and … Continue reading
NY Post: NYPD looks to add thousands of new body cameras
NY Post: NYPD looks to add thousands of new body cameras by Shawn Cohen and Daniel Prendergast: The NYPD is looking to substantially expand its body-camera pilot program by buying another 5,000 devices, officials said Monday. The department recently began … Continue reading
NYTimes: Georgia: $2.2. Million Penalty for Illegal DNA Testing
NYTimes: Georgia: $2.2. Million Penalty for Illegal DNA Testing by Gina Kolatajune: A jury in Atlanta awarded $2,225,000 on Monday to two warehouse workers whose employer required them to submit DNA samples in violation of the federal Genetic Information Nondiscrimination … Continue reading
WSJ: New York Man Acquitted in Drone-Surveillance Case
WSJ: New York Man Acquitted in Drone-Surveillance Case by Jack Nicas: A New York jury acquitted a man charged with using a drone to spy into windows of a doctor’s office, one of the first tests for how existing privacy … Continue reading
EFF: How USA Freedom Impacts Ongoing NSA Litigation
EFF: How USA Freedom Impacts Ongoing NSA Litigation by Kelsey Harclerode: Digital liberties groups across the country have both celebrated and criticized the recent passage of the USA Freedom Act. Here at EFF, we did a little bit of both. … Continue reading
IN: Smell of burnt MJ from car allows officer essentially to detain all
Defendant juvenile was a passenger in the back of a car stopped at 1:30 am, and there was a smell of burnt marijuana coming from the car. Under Pringle, that gave the officer cause to get everybody out of the … Continue reading
NY Co. Court: Despite Samson, parole search here was arbitrary and suppressed
Despite Samson, New York case law has engrafted a requirement of some cause for a parole search to avoid arbitrariness and harassment, which Samson doesn’t even allow. The stop and search here was arbitrary, and it is suppressed. People v. … Continue reading
IA: Relevant criminal history entitled to at least some weight in the PC determination for a SW
The state argued that the Fourth Amendment claim wasn’t preserved. Rather than go there, the court goes to the merits, maybe because it was easier. There was a substantial basis for issuing the search warrant. Moreover, a defendant’s criminal history … Continue reading
SCOTUS decides City of Los Angeles v. Patel: A hotel has a Fourth Amendment right to precompliance review of records production; a hotel is not a closely regulated industry
City of Los Angeles v. Patel, 2015 U.S. LEXIS 4065 (June 22, 2015) (5-4). [News links at end.] Syllabus: Petitioner, the city of Los Angeles (City), requires hotel operators to record and keep specific information about their guests on the … Continue reading
DE: SW needed for hospital medical records; subpoena production suppressed
Implicit in prior case law is that a search warrant is required for medical records in Delaware. The state’s obtaining defendant’s by subpoena is suppressed. State v. Robinson, 2015 Del. C.P. LEXIS 32 (May 15, 2015). Defendant consented to entry … Continue reading