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- CA5: CBP dog sniffing for people was PC even if it couldn’t differentiate between the driver and alleged hidden passengers
- D.D.C.: Here, RS was thin, and frisking under jacket was unreasonable
- NE: LEO’s statutory jurisdictional authority is not an unreasonable search and seizure question
- MA: Cell phone call logs don’t require a search warrant
- D.Kan.: Drug dog touching car door handle with nose isn’t unreasonable 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)
--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)
Website design by Wally Waller, Little Rock 
Monthly Archives: April 2016
M.D.Pa.: Checking criminal history doesn’t require probable cause
Checking criminal history doesn’t require probable cause, and defendant doesn’t cite any authority other than the Fourth and Fifth Amendment should be liberally construed. Motion in limine denied in one 711 word sentence. United States v. Green, 2016 U.S. Dist. … Continue reading
M.D.Ga.: CI’s tip had sufficient detail with sufficient corroboration to be RS
“Although Cartwright does not appear to challenge the CI’s basis of knowledge for the tip, it is a factor that is considered in the reliability analysis. … Even so, that fact, considered alongside the other substantial factors, leads to the … Continue reading
WaPo: Re: Above the Law: Comments are making the internet worse. So we got rid of them.
WaPo: Re: Above the Law: Comments are making the internet worse. So we got rid of them by David Lat: So we decided to get rid of the comments section. * * * In part, our decision was based on … Continue reading
C.D.Ill.: Opening a flip phone to see the screen is a “search” under Hicks
Opening defendant’s flip phone to see the home screen is a search under Hicks. The phone was clearly seized under the Fourth Amendment. The government, however, showed probable cause for a search warrant for the phone, and that was independent … Continue reading
CA1: Prior arrest warrant and public records put subject of arrest warrant at address; sufficient under Payton
The police had good reason under Payton to believe that a man wanted in an arrest warrant would be found at defendant’s house: An outstanding arrest warrant listed that address, postal records showed he got mail there, and other public … Continue reading
NJ: Walking up to police at 1:30 am and reaching for back pocket justified frisk
Defendant walked up to officers at 1:30 am in a high crime area, did not acknowledge their words to him, and moved his hand to his back pocket as he got closer. They frisked him, finding only a baggie of … Continue reading
Microsoft reports child porn in OneDrive accounts
Microsoft found child pornography in a folder saved by defendant on its cloud service, and it reported it to NCMEC. Law enforcement was afraid to contact him directly because he might delete images, so they found he was on probation … Continue reading
eff.org: EFF and ACLU Expose Government’s Secret Stingray Use in Wisconsin Case
eff.org: EFF and ACLU Expose Government’s Secret Stingray Use in Wisconsin Case: Thanks to EFF and the ACLU, the government has finally admitted it secretly used a Stingray to locate a defendant in a Wisconsin criminal case, United States v. … Continue reading
The Atlantic: How License-Plate Readers Have Helped Police and Lenders Target the Poor
The Atlantic: How License-Plate Readers Have Helped Police and Lenders Target the Poor by Kevah Waddell: Law enforcement can access privately-collected location information about cars—and some low-income neighborhoods have faced extra scrutiny.
NYTImes: U.S. Opens Another iPhone, This Time With the Keycode
NYTImes: U.S. Opens Another iPhone, This Time With the Keycode by Eric Lichtblau: The Justice Department said Friday night that it had gained access on its own to a locked iPhone used by a Brooklyn drug dealer, the second time … Continue reading
Newsweek: How the FBI Uses Facial Recognition Technology to Fight Crime
Newsweek: How the FBI Uses Facial Recognition Technology to Fight Crime by Eric Markowitz: Today, the FBI’s digital catalog of searchable ‘face photos’ has ballooned to some 548 million pictures, the largest database of faces in history. It includes criminal … Continue reading
NYTimes: F.B.I. Director Suggests Bill for iPhone Hacking Topped $1.3 Million
NYTimes: F.B.I. Director Suggests Bill for iPhone Hacking Topped $1.3 Million by Eric Lichtblau and Katie Benner: The director of the F.B.I. suggested Thursday that his agency paid at least $1.3 million to an undisclosed group to help hack into … Continue reading
WSJ: Prosecutors Say Fitbit Device Exposed Fibbing in Rape Case
WSJ: Prosecutors Say Fitbit Device Exposed Fibbing in Rape Case by Jacob Gershman: Data has always been a double-edged sword. The convenience, efficiency and knowledge on one side and privacy fears, surveillance concerns and cybercrime on the other. The same … Continue reading
IA: Guilty plea by a person later proved innocent bars civil action for false arrest
“In this case, we consider whether a defendant who has pled guilty to a criminal offense but later successfully challenged the validity of the plea may qualify as a “wrongfully imprisoned person” under Iowa Code section 663A.1 (2015).” While the … Continue reading
TN: No GFE for warrantless blood draw where no exigency at all
In a warrantless blood draw case under McNeely, the state argued for a good faith exception, analogizing the state’s new statutory good faith exception, which the court finds inapplicable. There simply was no exigent circumstance in this case to dispense … Continue reading
eff.org: Secret Court Takes Another Bite Out of the Fourth Amendment
eff.org: Secret Court Takes Another Bite Out of the Fourth Amendment: Defenders of the NSA’s mass spying have lost an important talking point: that the erosion of our privacy and associational rights is justified given the focus of surveillance efforts … Continue reading
NY2: SW for house and yard didn’t include shed behind the house
Where the search warrant was for the residence and yard, a shed on the yard could not be searched. Thus, defense counsel was ineffective for not challenging the search. Reversed. People v. Velez, 2016 NY Slip Op 03027, 2016 N.Y. … Continue reading
NV: Neither a warrant nor probable cause is required to get CLSI information
Neither a warrant nor probable cause is required to get CLSI information. Taylor v. State, 132 Nev. Adv. Rep. 27, No. 16-12414 (April 21, 2016):
Just Security: The FBI’s Warrantless Surveillance Back Door Just Opened a Little Wider
Just Security: The FBI’s Warrantless Surveillance Back Door Just Opened a Little Wider by Elizabeth Goitein: On Tuesday, the Office of the Director of National Intelligence (ODNI) released a redacted version of an opinion by Judge Thomas F. Hogan of … Continue reading
VICE: The Future of Border Securing Technology Is Here and It’s Terrifying
VICE: The Future of Border Securing Technology Is Here and It’s Terrifying by Meredith Hoffman: At the Tenth Annual Border Security Expo in San Antonio, Texas, officials from the Department of Homeland Security browsed booths with 3D holographic images, portable … Continue reading