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- M.D.Pa.: Def was neither shipper nor recipient of USPS parcel, so he had no standing in it
- WI: Obtaining def’s DNA by ruse wasn’t an illegal search
- WaPo: Apple, Google and Venmo fight new U.S. plan to monitor payment apps
- CA4: Tracking order using cell site simulator with PC was reasonable
- CADC: When searching a cell phone and officers find it belonged to someone else, a new SW isn’t required; SWs are directed at things, places, and people and owner doesn’t matter for PC
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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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--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: September 2016
NYTimes: Court Leader or Leading Dissenter? Chief Justice’s Fate Tied to Election
NYTimes: Court Leader or Leading Dissenter? Chief Justice’s Fate Tied to Election by Adam Liptak: WASHINGTON — In Chief Justice John G. Roberts Jr.’s 11 years on the Supreme Court, his unfolding legacy has been marked by a debate over … Continue reading
D.Del.: Where records examination is voluntary, no 4A claim stated where ptf refuses
The Delaware State Escheater sought an examination of records of Marathon Petroleum, and it refused to comply. The state could not force plaintiff to comply, so there is no search if plaintiff refuses. Marathon Petroleum Corp. v. Cook, 2016 U.S. … Continue reading
WaPo: Meet the judge who just released 200 secret government surveillance requests
WaPo: Meet the judge who just released 200 secret government surveillance requests by Spencer Hsu: In ordering the first-ever release by a full federal district court of a year’s worth of secret government surveillance requests, U.S. District Chief Judge Beryl … Continue reading
OH10: Leaving house to go to drug deal and returning there was nexus to house
Nexus to defendant’s house for a drug search warrant is shown by the fact that he returned to the house immediately after a drug transaction [what does that prove? Most people go home after work] and left the house to … Continue reading
CA7: Family computer that everybody knew password to gives common authority to all
The computer in the house belonged to defendant but it was a family computer and everybody knew the password. That being the case, any one of them had common authority over the computer to consent to its search. The fact … Continue reading
AR: Just because officer says on video “He’s been arrested for dope, dope, and dope … carrying a weapon” doesn’t mean it still wasn’t a valid inventory
The 4 on the year on the LPN expiration sticker looked funny, so the Trooper ran the LPN and it came back expired in 2011. It had been altered with a marker. Defendant said he borrowed his friend’s pickup. Defendant … Continue reading
OR: Search of Altoids tin during search of backpack for drugs was reasonable
When searching defendant’s backpack incident to arrest for drugs, the further search of an Altoids tin wasn’t unreasonable because it was a place where drugs would be held. State v. Krause, 281 Ore. App. 143, 2016 Ore. App. LEXIS 1142 … Continue reading
CA5: Warning potential victim of a hit on him overheard on a wiretap didn’t dissipate the exigency to try to stop it
The FBI learned through a wiretap that a person had a hit out on him by defendant, and succeeded in finding him and warning him. The mere fact he was warned didn’t dissipate the exigency because, until defendant was rounded … Continue reading
Esquire: The Bill of Rights Is Hanging by a Thread
Esquire: The Bill of Rights Is Hanging by a Thread by Charles P. Pierce: The law is supposed to be our protector, not our enemy.
TN: Blood on def’s sock supported PC for automobile exception
Based on blood on defendant’s sock, on the totality there was probable cause to believe that more possible blood evidence would be found in his car. That was sufficient for the automobile exception to apply. State v. Peden, 2016 Tenn. … Continue reading
S.D.Iowa finds Playpen NIT warrant violation of Rule 41 and Fourth Amendment
S.D.Iowa joins minority and finds Playpen NIT warrant violation of Rule 41 also a Fourth Amendment violation. United States v. Croghan, 2016 U.S. Dist. LEXIS 127479 (S.D.Iowa Sept. 19, 2016):
IL: Stop for failure to signal lane movement was not unreasonable where no case said officer couldn’t make stop
The officer’s stop of defendant for not using his turn signal when the signal lane became two lanes was at least a mistake of law under Heien, already recognized in Illinois. No state case addresses these facts, and it’s not … Continue reading
E.D.Va.: Def claimed on post-conviction defense counsel promised win on motion to suppress; hearing has to be held
Defendant in his 2255 claimed defense counsel promised that he could win a motion to suppress. Defense counsel denied it, saying he reviewed the file and told defendant it was a hopeless motion. A hearing has to be held. United … Continue reading
The Hill Blog: Open-carry opens up series of constitutional issues for cops
The Hill Blog: Open-carry opens up series of constitutional issues for cops by Geoffrey Corn: A police officer receives a dispatch call to a public disturbance. The dispatcher provides the limited information she can: protesters have assembled in a downtown … Continue reading
AL: Forfeiture claimant failed to show standing to contest the search that led to seizure of his cash
Defendant for all appearances was visiting the house searched but not an overnight guest. At any rate, he did nothing to show standing. When asked for consent, defendant refused saying it wasn’t his place, but he took the officers inside … Continue reading
Quartz: Opinion: How America’s obsession with TV cop shows like “Law and Order SVU” enables police brutality in real life
Quartz: Opinion: How America’s obsession with TV cop shows like “Law and Order SVU” enables police brutality in real life by Noah Berlatsky: The narrative incentives here are clear—if you’re creating mass pulp entertainment, you want drama….But this need for … Continue reading
TX: Anonymous tip was corroborated at the scene by officers for RS
An anonymous tip brought police to where defendant was, and their observations corroborated the tip sufficient to support reasonable suspicion. Furr v. State, 2016 Tex. Crim. App. LEXIS 1094 (Sept. 21, 2016) (dissent):
Common Dreams: Does Fear of Black Men Satisfy the “Objective Reasonableness” Standard?
Common Dreams: Does Fear of Black Men Satisfy the “Objective Reasonableness” Standard? by Brian Purnell: The case that set the standard on when police officers are justified in using excessive force is Graham v. Connor. But how that standard is … Continue reading
EFF: The Playpen Story: Some Fourth Amendment Basics and Law Enforcement Hacking
EFF: The Playpen Story: Some Fourth Amendment Basics and Law Enforcement Hacking by Mark Rumold: (This is part of a series of blog posts about the Playpen cases. For more background, see our earlier blog post and our FAQ.)
Reason: Trump Calls for More ‘Stop and Frisk’ of Citizens While Stumping for the Black Vote
Reason: Trump Calls for More ‘Stop and Frisk’ of Citizens While Stumping for the Black Vote by Scott Shackford: What Fourth Amendment?