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Recent Posts
- N.D.Ala.: All parts of a SW are read in context, and that narrows it so it’s not overbroad
- WA: No immediate bail for DV arrest violates neither 4A nor due process
- S.D.N.Y.: Overseas seizure of Russian oligarch’s megayacht not governed by 4A
- CA7: No IAC in failure to more aggressively pursue Franks challenge
- CA9: Compelled use of fingerprint to open a cell phone didn’t violate 5A
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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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--Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012)
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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 2018
D.N.M.: Inventory was reasonable on the totality, so officers’ actual intent doesn’t matter
Defendant was arrested at someone else’s home, and he had a bag. The homeowner wouldn’t take responsibility for the bag, so it went with defendant, and its inventory was reasonable on the totality. “Thus, whether or not the Officers’ testimony … Continue reading
N.D.Iowa: On totality, dog alert was reliable; not much difference between an “alert” and an “indication”
On the totality of the evidence, recognizing that dog sniffs can be unreliable (see quote), the court finds this one reliable. Also, there isn’t much difference here between a dog “alert” and an “indication.” United States v. Herbst, 2017 U.S. … Continue reading
S.D.Ohio: Residential rental property is not a “closely regulated industry”
Plaintiff meets his burden to get a preliminary injunction against a city rental property inspection ordinance that had no warrant requirement for refused entry. Rental property is not a closely regulated industry. Vonderhaar v. Evendale, 2018 U.S. Dist. LEXIS 8856 … Continue reading
ID: Where probation agreement searches occur “at the request of” PO, searching without request was fatal
Defendant’s probation agreement said that he’d submit to probation searches “at the request of” the probation officer. Searching without a prior request was fatal. State v. Jaskowski, 2018 Ida. LEXIS 19 (Jan 18, 2018). “The Franks challenge to paragraph three … Continue reading
LA2: No REP in text messages in another person’s cell phone
Defendant had no reasonable expectation of privacy in text messages in another person’s cell phone. State v. Young, 2018 La. App. LEXIS 110 (La. App. 2 Cir. Jan. 18, 2018). Defendant was on parole and his parole agreement required he … Continue reading
BBC: Apple health data used in murder trial
BBC: Apple health data used in murder trial:
Volokh Conspiracy: The Challenge of Fourth Amendment Originalism and the Positive Law Test
Volokh Conspiracy: The Challenge of Fourth Amendment Originalism and the Positive Law Test by Orin Kerr: If the Positive Law test is originalist, then what isn’t? A close look at Fourth Amendment history and some recent scholarship.
Cato: For the Purposes of the Fourth Amendment, Does it Matter Where Your Email Is Stored?
Cato: For the Purposes of the Fourth Amendment, Does it Matter Where Your Email Is Stored? by Ilya Shapiro, Trevor Burrus, and Reilly Stephens, re Cato’s amicus brief in United States v. Microsoft.
PA: Second officer arriving at scene knew enough for collective knowledge to apply; full (and unnecessary) discussion of vertical v. horizontal collective knowledge if you’re interested
Pennsylvania adheres to the vertical approach of collective knowledge. Here, another officer got involved and made the decision to arrest, but he knew what the first officer knew, and that was enough. This was still collective knowledge. (There is a … Continue reading
D.S.D.: General description of a handyman’s tools as “miscellaneous tools” did not make the inventory “defective”
General description of a handyman’s tools as “miscellaneous tools” did not make the inventory “defective.” United States v. Bruce, 2018 U.S. Dist. LEXIS 7387 (D.S.D. Jan 17, 2018). “Although the affidavit in the instant case could have provided more information … Continue reading
CA11: Def argued there was no authority for use of a cell site simulator to track him; police had a tracking warrant issued on PC, and that’s all that’s required
Defendant was arrested coming out of a Dollar General Store, and officers smelled marijuana around his car. Even though defendant wasn’t in it, the car was still “mobile” for automobile exception purposes, and the smell provided probable cause. Defendant also … Continue reading
FL3: Warrantless blood test justified by exigency where it was 4:22 am Sunday and it would take 4 hours to get SW
Exigent circumstances justified a warrantless blood test because defendant’s accident occurred at approximately 4:22 a.m. on a Sunday, the accident was serious, resulting in an instantaneous death, defendant himself was seriously injured, taken to a hospital for treatment, and induced … Continue reading
OH12: When state SCt denies review of 4A claim, it’s law of the case on remand
After the state supreme court denied discretionary review of the search issue, the lower court ruling became law of the case, and the suppression hearing couldn’t be reopened. State v. Raphael, 2018-Ohio-140, 2018 Ohio App. LEXIS 140 (12th Dist. Jan. … Continue reading
MN: Order to provide a fingerprint to unlock a cell phone is not testimonial and thus not barred by the 5A
An order to provide a fingerprint to unlock a cell phone is not testimonial and thus not barred by the Fifth Amendment. State v. Diamond, 2018 Minn. LEXIS 7 (Jan. 17, 2018):
CA6: Computers, like guns, are usually kept at home, and that’s nexus for search of house for a computer [!?]
A computer, like a gun, is usually kept in the home, and a search warrant for a computer establishes nexus to search defendant’s house[!, really?]. Thus, there was no Fourth Amendment violation and alternatively there was qualified immunity. Peffer v. … Continue reading
CA11: Mistake in apt number in SW wasn’t fatal flaw because of “rich detail” describing the apt door
The search warrant had the wrong apartment number, but the location of the apartment was described in “rich detail,” including that the door had numerous stickers. Therefore, defense counsel wasn’t ineffective for not challenging the search warrant. United States v. … Continue reading
Salt Lake Tribune: Warrants approved in just minutes: Are Utah judges really reading them before signing off?
Salt Lake Tribune: Warrants approved in just minutes: Are Utah judges really reading them before signing off? By Jessica Miller & Aubrey Wieber:
WaPo: A Google app that matches your face to artwork is wildly popular. It’s also raising privacy concerns.
WaPo: A Google app that matches your face to artwork is wildly popular. It’s also raising privacy concerns. by Hamza Shaban:
NSA surveillance programs renewed by Senate
CNET: NSA surveillance programs renewed by Senate by Laura Hautala, and so much for the allegedly threatened filibuster. TechCrunch: Why you should care about the warrantless surveillance bill on its way to Trump’s desk by Taylor Hatmaker Cato: Fear and … Continue reading
D.Nev.: Def was handcuffed and in police car, so search incident didn’t apply; it was inevitable, however, inventory would happen
Defendant’s arrest led to a search incident of luggage, but he was handcuffed and in a police car. So, the search incident doctrine can’t apply, but an inventory would have inevitably occurred, so that provides an independent basis for the … Continue reading