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- FISA was extended for two years shortly after it expired at midnight
- LA4: Merely having a concealed firearm isn’t RS for a frisk
- OR: Merely driving off the road wasn’t RS, but adding the driver’s demeanor at the time was
- OH6: Trial court’s failure to explain RS under Rodriguez required remand
- CA6: Asking def before a patdown during arrest what he had on him wasn’t barred by Miranda
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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)
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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: January 2018
WA: Search of hard drive by Texas police for videos made in Washington governed by 4A, not Washington law
Defendant had voyeur videos of a young girl on a hard drive that he ended up having a sexual relationship with after she turned 18. He’d moved from Washington to Texas with the military in between those times and took … Continue reading
Cal.2d: 911 call about threat to shoot oneself supports entry and cursory search for weapons
A 911 call about an apparent threat to shoot oneself supports a community caretaking entry and cursory look around the house. People v. Ovieda, 2018 Cal. App. LEXIS 34 (2d Dist. Jan. 17, 2018):
CA5: On totality of affidavit, Franks challenge fails because officer’s error in affidavit was negligent and not reckless
The officer interviewed the Spanish speaking informant and prepared an affidavit with the gist of the conversation. The officer’s Spanish skills were limited, and he overstated the CI’s prior information. On the totality, the officer’s statement was merely negligent and … Continue reading
S.D.Ohio: Facebook SW failed to show nexus to alleged hate crime, but GFE applies
Defendant is charged with a hate crime, and the government believed that he was involved with a group. The search warrant for his Facebook account failed to show nexus to get access to the non-public pages just because the group … Continue reading
NE: Having only key to rented car glovebox and not to car itself didn’t give standing
Having a key to the glovebox of a rented car, but not to the car itself, was not a sufficient reasonable expectation of privacy in the rented car to have standing. Defendant couldn’t get into the car without somebody else … Continue reading
N.D.Iowa: There is no constitutional difference between a drug dog’s “alert” and “indication”
There is no constitutional difference between a drug dog’s “alert” and “indication.” The dog’s actions and what it means to the handler are just a factor in probable cause to search. United States v. Herbst, 2018 U.S. Dist. LEXIS 6516 … Continue reading
D.N.J.: SEC didn’t violate Model Rule 4.4(a) when it obtained SW production from USAO
“For instance, the SEC did not ‘violate [Avalon’s] legal rights’ when it ‘obtain[ed] evidence’ from the [USAO of the] DNJ that the DNJ had in turn obtained through a court-issued search warrant. Rule 4.4(a). As described above, when it accepted … Continue reading
Anchorage Daily News: State admits recording jail conversations between defense lawyers and clients
Anchorage Daily News: State admits recording jail conversations between defense lawyers and clients by Lisa Demer: For four years, a tucked-away monitoring system in a certain visitation room at the Anchorage jail recorded conversations between attorneys and their clients – … Continue reading
WaPo: Big Brother on wheels: Why your car company may know more about you than your spouse
WaPo: Big Brother on wheels: Why your car company may know more about you than your spouse by Peter Holley:
N.D.Ill.: Exclusionary rule doesn’t apply in civil case
The FTC moved for a preliminary injunction and appointment of a receiver which was granted on an emergency basis. Defendants now claim a Fourth Amendment violation from seizure of records. The claim is waived by not raising it sooner. Even … Continue reading
The Atlantic: Can Government Officials Have You Arrested for Speaking to Them?
The Atlantic: Can Government Officials Have You Arrested for Speaking to Them? by Garrett Epps The Supreme Court faces a test of the authority of politicians to use police to silence their critics.
N.D.Ga.: Administrative search exception doesn’t apply to a motorcycle club that isn’t remotely a “closely regulated business”
The administrative search exception under Atlanta city ordinance doesn’t apply to a motorcycle club that isn’t remotely a “closely regulated business.” Summary judgment for plaintiffs granted. Brown v. City of Atlanta, 2018 U.S. Dist. LEXIS 6222 (N.D. Ga. Jan. 9, … Continue reading
WaPo: Meet the 24-year-old Trump campaign worker appointed to help lead the government’s drug policy office
WaPo: Meet the 24-year-old Trump campaign worker appointed to help lead the government’s drug policy office by Robert O’Harrow Jr.:
AP: Judge: Atlanta warrantless search policy unconstitutional
AP: Judge: Atlanta warrantless search policy unconstitutional: The city of Atlanta had a policy of conducting unlawful, warrantless searches of commercial properties, a federal judge ruled this week in a case brought after officers searched a motorcycle club’s meeting space.
Gizmodo: Facebook Knows How to Track You Using the Dust on Your Camera Lens
Gizmodo: Facebook Knows How to Track You Using the Dust on Your Camera Lens by Kashmir Hill and Surya Mattu: We can’t know when or if Facebook will ever actually scan digital photos for dust or tap into our phones’ … Continue reading
CNN: Rand Paul threatens to filibuster over FISA surveillance program
CNN: Rand Paul threatens to filibuster over FISA surveillance program by Veronica Stracqualursi: Paul said he would vote to reauthorize Section 702, however, if there are protections in place for Americans’ private information, and added that he supports the USA … Continue reading
Volokh Conspiracy: The Fourth Amendment, the Exclusionary Rule, and Illegal Government Searches
Volokh Conspiracy: The Fourth Amendment, the Exclusionary Rule, and Illegal Government Searches by Damon Root Why illegally obtained evidence is generally inadmissible in court.
Volokh Conspiracy: Yes, the Positive Law Model of the Fourth Amendment is Originalist
Volokh Conspiracy: Yes, the Positive Law Model of the Fourth Amendment is Originalist by Will Baude Orin asked me to correct the record; I’m correcting it.