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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,
citations, and links -
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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: November 2017
Law and Liberty: The Original Meaning and the Carpenter Case: “Their Papers”
Law and Liberty: The Original Meaning and the Carpenter Case: “Their Papers” by Mike Rappaport:
The Atlantic: A Liberal-Conservative Alliance on the Supreme Court Against Digital Surveillance
The Atlantic: A Liberal-Conservative Alliance on the Supreme Court Against Digital Surveillance Jeffrey Rosen: Justices found common ground in asserting the relevance of the Fourth Amendment in the electronic age, even as they cited sharply different rationales.
The Hill: It’s too easy for the government to invade privacy in name of security
The Hill: It’s too easy for the government to invade privacy in name of security by Jonathan Turley:
Carpenter argument now online and Kerr’s comments
Transcript here. Orin Kerr’s video comments here. Kerr’s twitter post with link added: Summary of Carpenter argument using the “four models” framework: Carpenter may win based on several Justices relying on the policy model and one Justice relying on the … Continue reading
NYTimes: Justices Seem Ready to Boost Protection of Digital Privacy
NYTimes: Justices Seem Ready to Boost Protection of Digital Privacy by Adam Liptak:
CA9: While cell phone privacy interest is substantial, state’s interest in parole searches of cell phones is greater
While the general reasonable expectation of privacy in a cell phone is weighty, it still succumbs to the state’s interest in parole searches of a cell phone to insure compliance with parole requirements. The record also supports consent given by … Continue reading
MD follows Strieff on attenuation from preexisting arrest warrant
“[W]here officers observed a group of individuals openly drinking what appeared to be an alcoholic beverage and one of them threw a bottle to the ground, the officers had reasonable suspicion to investigate a potential open container violation and to … Continue reading
NY1: Suppression of firearm in criminal case wasn’t collateral estoppel in civil case where ptf didn’t offer any evidence
Suppression of a firearm in the criminal court was not collateral estoppel to a civil case for false arrest, particularly where plaintiff offered no evidence at all. Davidson v. City of New York, 2017 NY Slip Op 08313, 2017 N.Y. … Continue reading
PA: Flashing overhead lights on a police car means stop and stay until released; stopping to check GPS isn’t RS
According to the vehicle code and the driver’s license manual, when a police car has its lights on, a driver is to stop until let go. Here, the officer pulled up next to defendant’s car on the side of I-79 … Continue reading
W.D.N.C.: First def denied ownership of backpack, and after drugs were found he claimed it; “the fact that defendant claimed ownership of the backpack after the search is of no moment.”
First defendant denied ownership of the backpack, and the police searched it. “[T]he fact that defendant claimed ownership of the backpack after the search is of no moment.” That was abandonment. United States v. Ferebee, 2017 U.S. Dist. LEXIS 193791 … Continue reading
Arkansas Times: Benton County prosecutors drop Amazon Echo murder case
Arkansas Times: Benton County prosecutors drop Amazon Echo murder case by Max Brantley:
SCOTUSBlog: Wednesday round-up [Carpenter]
SCOTUSBlog: Wednesday round-up by Edith Rogers:
D.Minn.: Govt pinned its vehicle search on lack of standing and lost, so vehicle search suppressed; house search, however, shown to be by consent
Even though somebody else owned the van, defendant was a regular user and that gave him standing. At the time of the seizure, it had broken down, and he used it then for storage. The government failed to show any … Continue reading
D.Minn.: DHS could stop airplane on ground for pilot certificate inspection; after PC found, airplane subject to automobile exception because of mobility
Federal officers can seek a pilot certificate inspection (PCI) of any airplane. 14 C.F.R. 61.51(i). “Although it seems obvious that the agents were interested in Defendants’ plane for drugs—and therefore that the PCI was merely a pretext to dig around—officers … Continue reading
E.D.La.: Casing parked cars the weekend before Mardi Gras then all getting in one car was RS
“As noted, the troopers had reasonable suspicion to stop the defendants. The troopers had watched a man, at night, in a high crime area during Mardi Gras, the busiest weekend of the year, peer into several unoccupied vehicles, and then … Continue reading
SCOTUSblog: Argument preview: The justices return to cellphones and the Fourth Amendment
SCOTUSblog: Argument preview: The justices return to cellphones and the Fourth Amendment by Amy Howe: [D]oes the third-party doctrine apply the same way to cellphones, which only became commercially available a few years after the court’s decisions in Miller and Smith?… That question … Continue reading
Lawfare: The Fifth Amendment, Decryption and Biometric Passcodes
Lawfare: The Fifth Amendment, Decryption and Biometric Passcodes by Kendall Howell:
Daily Beast: Would the Founding Fathers Have Tracked Your Cell Phone?
Daily Beast: Would the Founding Fathers Have Tracked Your Cell Phone? by Jay Michaelson: It’s a concept the Constitution’s framers couldn’t have imagined, and that shows why ‘originalism’ like Justice Gorsuch’s is bunk. Your cellphone company knows where you are … Continue reading
E.D.N.C.: Fact POs entered third party’s home to arrest him doesn’t make it unreasonable
POs found defendant parolee at his girlfriend’s house that he was not approved to live in. It was arguable he didn’t have standing, and his reasonable expectation of privacy was reduced there [I think he would have standing as an … Continue reading