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- Lawfare: How Google’s Location History Program Could Upend Digital Surveillance Law
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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,
citations, and links -
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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)
--Federal Laws Relating to Cybersecurity: Discussion of Proposed Revisions (2012)
ACLU on privacy
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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: January 2017
Cal.4th: Public strip search of ptf stated claim: He was in a park arrested for being there after it closed, on a bike without a headlight, and fled when officers approached
Plaintiff had a claim under the Tom Bane Civil Rights Act, even if officers had probable cause for an arrest, because he alleged roadside body cavity searches which necessarily amounted to intentional conduct separate and independent from a lawful arrest … Continue reading
CA6: Without record references to where the facts are, the court finds the 4A argument waived; counsel blames word limits on briefs
Defendant had waived his challenge to the denial of motions to suppress where he failed to point to any findings in the record demonstrating how the district court erred or why a wiretap application lacked probable cause. Even if defendant … Continue reading
WY: Jury instruction on the state version of the 4A wasn’t proper in case involving use of force against officer in his house
One is not entitled to use excessive force against a police officer unlawfully in the home. The officer must also be using excessive force. Defendant’s proffered jury instruction that merely recited the state constitutional provision on search and seizure was … Continue reading
CA5: Ptf loses on his civil Franks claim because of a lack of materiality to PC
The affidavit for arrest warrant failed to include information that would undermine the credibility of the police informant, but the court finds that the omission was not material and there was other information that supported probable cause. Therefore, the officer … Continue reading
LA1: DNA testing for paternity testing is governed by the 4A
Court ordered DNA testing for paternity is a search under the Fourth Amendment, but it is reasonable. L.J.D. v. M.V.S, 2017 La. App. LEXIS 107 n.8 (La.App. 1 Cir. Jan. 25, 2017). The police knew three weeks ahead of time … Continue reading
S.D.W.Va.: Pen register information collected beyond time limit of register not suppressed under 4A because it’s not a search
Pen register information collected outside the time period of the pen register order would not be suppressed under the Fourth Amendment because its collection is not even a “search.” Defendant has no standing in search warrants issued for two cell … Continue reading
N.D.Cal.: Documents seized beyond SW terms in computer search suppressed
The government seized documents in a computer search that are outside the warrant because it didn’t comply with a Comprehensive Drug Testing computer search protocol, but it declines to remove them from its computer image file because it would taint … Continue reading
E.D.Cal.: No right to return of iPad and iPhone as long as they have evidentiary value, including through appeal
Defendant does not have a right to return of seized property under Rule 41(g) as long as there is potential evidentiary value, including through appeal. Defendant does not claim that his iPad and iPhone weren’t illegally seized to begin with; … Continue reading
E.D.Mich.: Squeezing bag of MJ when taking it off def wasn’t unreasonable; it was apparent what it was
Squeezing a baggie of suspected marijuana to sense its feel was not unreasonable, if that is part of defendant’s argument, which isn’t obvious. It was at arms length when seized, and its appearance was marijuana anyway. United States v. Barnes, … Continue reading
N.D.Ga.: Police reports attached to post-hearing brief not in evidence would not be considered
“[T]he Court does not consider the exhibits that Smith attached to his post-evidentiary hearing brief. These documents presumably were in Defendant’s possession at the time of the evidentiary hearings and could have been used to cross-examine the witnesses. Smith does … Continue reading
M.D.Pa.: Girlfriend’s misstatement about presence of other persons in house during probation search justified protective sweep
“[O]fficers went to Mr. Owens’ residence to conduct a probationary check. After knocking on the door, officers were told by Mr. Owens’ girlfriend, Ms. Haqq, that he was not present and that she was the only adult at the residence. … Continue reading
The Hill: Congress must restore 4th Amendment protections for email privacy
The Hill: Congress must restore 4th Amendment protections for email privacy by Brian McNicoll: Additionally, unfettered access to private emails does not seem to comport with the Fourth Amendment protections against search and seizure without a duly sworn warrant. Congress … Continue reading
Police One: What cops need to know about TASER use, the Fourth Amendment and excessive use of force
Police One: What cops need to know about TASER use, the Fourth Amendment and excessive use of force by Mike Callahan By analyzing case law, we can glean constitutional guidance concerning when the use of a TASER is lawfully appropriate … Continue reading
EFF Asks Massachusetts High Court to Require Clear Limits Before Allowing Searches of Digital Devices and Information
EFF Asks Massachusetts High Court to Require Clear Limits Before Allowing Searches of Digital Devices and Information by Stephanie Lacambra: Along with several other advocacy groups, EFF signed on to an amicus brief this week in the case of the … Continue reading
W.D.La.: Deciding against def after remand on suppression motion on different ground didn’t violate mandate
On remand from reversal of denial of defendant’s suppression motion, the court analyzed the evidence anew, albeit from a different perspective, and it denies the motion to suppress on different grounds. This does not violate the Fifth Circuit’s mandate. Defendant … Continue reading
Reason: Majority of States Lack Transparency on Asset Forfeiture
Reason: Majority of States Lack Transparency on Asset Forfeiture by C.J. Ciaramella: Want to know how much stuff police are seizing from people and where all that money goes? Good luck. Asset forfeiture programs in the majority of states across … Continue reading
E.D.Mich.: Mixed motive for otherwise valid inventory doesn’t make it unreasonable
A mixed motive for an inventory search doesn’t make it unreasonable as long as the inventory was reasonable. United States v. Dowl, 2017 U.S. Dist. LEXIS 7184 (E.D. Mich. Jan. 19, 2017):
UT: Def counsel failed to provide effective assistance in getting 4A issue before court for resolution
Defense counsel failed to adequately defend the accused on his motion to suppress by not briefing and failing to get it before the court for a hearing, essentially abandoning the client. The issue was left cloudy enough in the record … Continue reading
MA: Anonymous tip only corroborated on obvious details not sufficient
The state failed to corroborate at all the basis of knowledge or reliability of the anonymous source. The described car showing up at the appointed time isn’t enough. Commonwealth v. Pinto, 2017 Mass. LEXIS 21 (Jan. 23, 2017):