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- D.Me.: Looking around house when allegedly “freezing” it was an illegal search
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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)
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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: March 2016
MD: Stringray/Hailstorm cell phone tracking device a search; nondisclosure agreement unconstitutional
The use of a Stingray/Hailstorm device to track a cell phone is a search under the Fourth Amendment. The Nondisclosure Agreement is essentially unconstitutional because of the state’s argument they don’t have to disclose what they were doing. The court … Continue reading
WaPo: What life is like after police ransack your house and take ‘every belonging’ — then the charges are dropped
WaPo: What life is like after police ransack your house and take ‘every belonging’ — then the charges are dropped By Christopher Ingraham: A self-described Michigan “soccer mom” who had “every belonging” taken from her family in a 2014 drug … Continue reading
OH11: Officers had reason to believe def at home; entry and plain view valid
Officers had an arrest warrant for defendant and knocked at her apartment door saying only “Sheriff’s Office.” A falsetto voice said “Ashley’s not here.” Officers responded “How do you know we’re looking for Ashley?” They were let in, and they … Continue reading
CA11: Putting a backpack in trunk and distancing self from it and then giving false name was abandonment
The search of defendant’s backpack was supported by two rationales: Lack of a reasonable expectation of privacy and automobile exception. As to the former, “Even if Rivera did have a reasonable expectation of privacy, the district court found that Rivera … Continue reading
N.D.Ill.: Assistance and foreign wiretap were done by locals; no U.S. involvement, so no 4A protection
Defendant was indicted for ATM skimming and other identity theft offenses. The FBI started the investigation and contacted Bulgarian police about phone numbers from there. Bulgarian police tied the numbers to defendant, and they procured wiretaps at U.S. request and … Continue reading
N.D.Ga.: Making money but no job was RS for a probation search
Reasonable suspicion for a probation search came from a “trusted” person call that defendant was making money but had no job and he was a past meth dealer. That was enough. Then defendant consented, too. United States v. Danner, 2016 … Continue reading
MA: Collective knowledge of nothing is still nothing, despite stopping officer’s good faith
Collective knowledge here was not reasonable suspicion. Defendant’s vehicle was reportedly involved in a shooting and stopped based on a radio report from Boston PD to another department. Defendant, however, had left the scene of the shooting ten minutes before … Continue reading
U.S.News & World Report: Merrick Garland’s Trunk-Search Ruling Gives Some Defense Advocates Chills [Typical Internet headline hyperbole]
U.S.News & World Report: Merrick Garland’s Trunk-Search Ruling Gives Some Defense Advocates Chills Scholars say, however, the decision is within the judicial mainstream. [The headline alone is enough to make me not even want to read it because the writer … Continue reading
USA Today: 1,000 locked devices in limbo after FBI quits iPhone case
USA Today: 1,000 locked devices in limbo after FBI quits iPhone case by Kevin Johnson and Elizabeth Weise: The government’s surprise decision to withdraw its case against Apple over the San Bernardino killer’s iPhone adds uncertainty to criminal cases where … Continue reading
D.Kan.: USMJ scholarly opinion on history of email SWs; “Needless to say, a person’s email account may reveal their ‘privacies of life.’”
The government’s email account search warrant request is overbroad as to what is being seized. The court analogizes Riley and notes that email accounts can provide a detailed picture of a person’s life the same as a cell phone search. … Continue reading
MA recognizes lesser intrusive measures to impoundment; inventory here unreasonable
Lesser intrusive measures to impoundment were available and rejected by the police, and that made the inventory unreasonable. Defendant offered to have somebody come and immediately get the car, and he should have been able to. Commonwealth v. Oliveira, 2016 … Continue reading
WaPo: FBI has accessed San Bernardino shooter’s phone without Apple’s help
WaPo: FBI has accessed San Bernardino shooter’s phone without Apple’s help by Matt Zapotosky: The Justice Department is abandoning its bid to force Apple to help it unlock the iPhone used by one of the shooters in the San Bernardino … Continue reading
OH4: PC not required for a traffic stop; it only requires RS
Probable cause is not required to justify a traffic stop; reasonable suspicion is enough. State v. Taylor, 2016-Ohio-1231, 2016 Ohio App. LEXIS 1124 (4th Dist. March 11, 2016). Defendant was taken to the police station, so he was arrested without … Continue reading
CNN breaking news: DOJ drops case against Apple over breaking into iPhone
New law review article: “An Economic Understanding of Search and Seizure Law”
Orin Kerr, An Economic Understanding of Search and Seizure Law, 164 U.Penn. L.Rev. 591 (2016). Abstract: This Article uses economic concepts to understand search and seizure law, the law governing government investigations that is most often associated with the Fourth … Continue reading
IL: Lost page of affidavit for SW can be proved without resort to formality of Court Records Restoration Act
When page two of the original complaint for search warrant disappeared, the state was not required to comply with the Court Records Restoration Act to prove up the search warrant at the suppression hearing. A normally authenticated copy would do. … Continue reading
ID: “There is no constitutional right not to be mistaken for a criminal. ‘The Constitution does not guarantee that only the guilty will be arrested.'”
Plaintiff was a sublessee of a dental office laboratory but was seen breaking in through a window by a neighbor who called 911. Police arrived and the reporter said the woman appeared drunk or on drugs. The first officer to … Continue reading
W.D.Mo.: No right to return of electronic data where def already has it from gov’t
A motion for return of property under Rule 41(g) is properly denied where the defendant has complete electronic versions of the records. United States v. Womack, 2016 U.S. Dist. LEXIS 39097 (W.D.Mo. March 25, 2016). Defendant was pulled over because … Continue reading
N.D.Ga.: State exceptions to GFE don’t apply in federal court even where state judge issued SW
A Georgia state judge issued this search warrant, and it was supported by probable cause. In any event, the good faith exception saves it. Any exception to the good faith exception under Georgia law is irrelevant in a federal prosecution. … Continue reading