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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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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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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: February 2016
NY: False confession forwarded to DA for grand jury supports common law malicious prosecution and § 1983 claim
“Evidence that the officers forwarded the false confession to prosecutors can satisfy the commencement element of a malicious prosecution cause of action, and the proof of the absence of probable cause for the prosecution and the police’s transmission of the … Continue reading
E.D.Mich.: Def was told he wasn’t under arrest but he could have been; search incident valid
Defendant was stopped for a traffic offense, and he was told he was being placed in handcuffs because the officer was unaware of who he was and that that did not mean he was going to jail. A patdown produced … Continue reading
W.D.Va.: Four corners rule does not apply to additional facts supporting good faith exception
Defendant’s original motion didn’t support standing but his brief did, and the court finds he was an overnight guest with standing. “At the outset, the court seriously doubts that the search warrant in this case was valid. While a magistrate’s … Continue reading
Apple’s response in the compelled iPhone hack case posted
In the Matter of the Search of an Apple iPhone Seized During the Execution of a Search Warrant on a Black Lexus IS300, California License Plate 35KGD203, ED No. CM 16-10 (SP) (N.D.Cal.), Apple Inc’s Motion to Vacate Order Compelling … Continue reading
KS decides four cases on implied consent: “refusal to submit” cannot be prosecuted under due process
Punishing withdrawal of implied consent in a suspected DUI case violates due process. “Refusal to submit” cannot be separately prosecuted. Four cases decided Feb. 26th: State v. Ryce, 2016 Kan. LEXIS 107 (Feb. 26, 2016):
N.D.Cal.: Pre-Riley warrantless state search of cell phone was valid, so GFE applies
Defendant’s cell phone was searched without a warrant pre-Riley under California’s Diaz which expressly permitted warrantless cell phone searches. Therefore, that search was valid at the time under the good faith exception. United States v. Williams, 2016 U.S. Dist. LEXIS … Continue reading
OR: Even if stop invalid, false name given to officer is attenuated
While the officer at the suppression hearing couldn’t remember the basis for the traffic stop, the crux was that defendant gave a false name when arrested, and that was an independent illegality attenuated from the stop. The false name charge … Continue reading
NY: Seizure of bag of clothes at ER lacked any belief of connection to def’s shooting
Defendant came to a hospital ER with a gunshot wound, and the police were called. Defendant’s clothes were put in a clear plastic bag. Without any information about entrance or exit wounds and whether the clothes were evidence of a … Continue reading
CA5: Excessive force ptf has to show how clearly established law was violated; here, they did not
A search for business records was done with force and guns drawn because of officers’ fear of retaliation because the business owner didn’t like the ordinance he was to pay sales taxes under. When police entered, the owner drew his … Continue reading
WaPo: Apple says FBI seeks ‘dangerous power,’ files motion opposing court order to help unlock iPhone
WaPo: Apple says FBI seeks ‘dangerous power,’ files motion opposing court order to help unlock iPhone by Mark Berman and Ellen Nakashima:
Cincinnati Enquirer: Ky. seizure laws under scrutiny by local lawmaker
Cincinnati Enquirer: Ky. seizure laws under scrutiny by local lawmaker by James Pilcher: Kentucky law requires police and sheriff departments to report how much property and cash they seize and keep as the result of criminal investigations. But an Enquirer … Continue reading
NYTimes: The Apple Case Will Grope Its Way Into Your Future
NYTimes: The Apple Case Will Grope Its Way Into Your Future by Farhad Manjoo: If every device can monitor you, and if they can all be tapped by law enforcement officials under court order, can anyone ever have a truly … Continue reading
NYTimes: Apple Is Said to Be Trying to Make It Harder to Hack iPhones
NYTimes: Apple Is Said to Be Trying to Make It Harder to Hack iPhones by Matt Apuzzo and Katie Benner:
NY Co.: Overbreadth in email warrant doesn’t require suppression of all emails; third party doctrine should be revamped for the electronic era
The New York eavesdropping statute only applies to communications in transit, not to emails. Despite the overbreadth of the email warrant, the court won’t suppress all the emails. Those that are suppressed have to be returned. The court argues for … Continue reading
IL: Warrantless blood draws pre-Neely are valid under GFE
Illinois law before McNeely permitted warrantless blood draws, and pre-McNeely searches would be valid under Davis good faith. People v. Harrison, 2016 IL App (5th) 150048, 2016 Ill. App. LEXIS 73 (Feb. 18, 2016). A 2254 petitioner gets a COA … Continue reading