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- CA5: Deficient privilege log after records search was waiver
- E.D.Ky.: When court can’t tell the dog alerted, motion to suppress granted
- OH1: A malnourished child isn’t exigency for an infant
- E.D.Pa.: Mandamus doesn’t lie to unseal SW papers
- 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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Daily Archives: December 29, 2016
PA holds state constitution requires exclusionary rule applies to parole and probation revocation proceedings
PA holds state constitution requires exclusionary rule applies to parole and probation revocation proceedings. The court engages in a lengthy and sensitive analysis. Commonwealth v. Arter, 2016 Pa. LEXIS 2916 (Dec. 28, 2016):
Ars Technica: Here’s what a “digital Miranda warning” might look like
Ars Technica: Here’s what a “digital Miranda warning” might look like by Cyrus Farivar: Smartphone owners need to know if—and when—they need to reveal their passcodes.
New law review: Actual Expectations of Privacy, Fourth Amendment Doctrine, and the Mosaic Theory
New law review: Actual Expectations of Privacy, Fourth Amendment Doctrine, and the Mosaic Theory, by Lior Strahilevitz & Matthew B. Kugler (not online yet, if ever).
E.D.N.Y.: 791 days of GPS tracking of a parolee to catch others in a DTO was [somehow] not unreasonable
In a really strange case, a GPS monitor to track curfew violations of a parolee was left on for 791 days. The parole officers and then other officers watched where he was going to attempt to crack a drug trafficking … Continue reading
D.N.M.: When neither party requests a hearing and only disputed fact isn’t material, one won’t be held
Neither party requested a hearing on the motion to suppress and one isn’t required. Here, there is one disputed fact and it isn’t material to the outcome. United States v. Benavidez, 2016 U.S. Dist. LEXIS 175373 (D.N.M. Dec. 19, 2016).
CA8: As long as drug dog gets there before the traffic ticket is done, it’s all good
From the circuit that brought us Rodriguez, a drug dog on the scene within two minutes of a traffic stop and writing a ticket for no DL was reasonable. “Thus, there is no evidence that the dog sniff unlawfully prolonged … Continue reading
LA rule permitting electronic warrant applications and issuance doesn’t violate 4A or Rule 41
The police got a search warrant from a Louisiana state judge by electronic means, but the case ended up in federal court. Louisiana’s criminal rule permitting electronic warrant applications does not violate the “oath or affirmation” requirement of the Fourth … Continue reading
N.D.Cal.: Conversations outside courthouse were entitled to REP [on reconsideration]
Surreptitious recordings outside the San Mateo courthouse of persons talking amongst themselves were entitled to a reasonable expectation of privacy because they talked such that others could not overhear them except with planted recording devices. The court will conduct a … Continue reading
CA9: Def turned over cell phone by consent, but, even if not, it was searched with a warrant
Defendant handed over his telephone when it was requested [or demanded] by the police. The Fourth Amendment wasn’t violated because turning over the phone was by consent. Even if turning over the phone was nonconsensual, the cell phone was searched … Continue reading
NYLJ.com: Electronic GPS Tracking and the Fourth Amendment
NYLJ.com: Electronic GPS Tracking and the Fourth Amendment by Martin Flumenbaum & Brad S. Karp: In their Second Circuit Review column, Martin Flumenbaum and Brad S. Karp examine two decisions which appear to reflect the court’s growing interest in the … Continue reading