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- D.Utah: Police slow walked traffic stop without RS
- IA: Court ordered privilege review of search was at its expense
- D.Kan.: Preservation request under SCA isn’t a search or seizure
- UT: RS on a prior day was not RS for stop on day in question
- CA2: Ptf alleged invasion of privacy for 4A violation, and that’s enough
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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)
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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)
Website design by Wally Waller, Little Rock 
Monthly Archives: February 2018
Vox: Why Border Patrol agents can board a bus or train and ask if you’re a citizen
Vox: Why Border Patrol agents can board a bus or train and ask if you’re a citizen by Alexia Fernández Campbell
C.D.Ill.: SW could permit adding breakaway filaments to package for anticipatory warrant
It was not unreasonable nor a violation of the Fourth Amendment for a warrant to permit officers to add breakaway filaments to a package as a triggering notice for an anticipatory warrant. United States v. Halliburton, 2018 U.S. Dist. LEXIS … Continue reading
SCOTUSblog: Symposium: Whatever happens in US v. Microsoft, three themes will persist
SCOTUSblog: Symposium: Whatever happens in US v. Microsoft, three themes will persist
NY2: Morning eviction led to trespassing claim in afternoon, and police entry was valid; no REP after eviction
All the occupants of an apartment were evicted in the morning. Stragglers didn’t vacate. The building manager reported trespassers to the police and they came and entered. They found eight guns in defendant’s possession. Because of the eviction, nobody had … Continue reading
HuffPo: Tennessee Sheriff Said ‘I Love This Shit’ After Ordering Deputies To Shoot Suspect: Video
HuffPo: Tennessee Sheriff Said ‘I Love This Shit’ After Ordering Deputies To Shoot Suspect: Video by Hayley Miller Sheriff Oddie Shoupe told officers that he would rather they use deadly force than risk damaging patrol cars, according to bodycam footage.
First rate appellate CLE in Arkansas 3/28-29, not just 8th Cir. focused
2018 Justice Donald L. Corbin Appellate Symposium, March 28-29th in Little Rock at Bowen School of Law. Lawyers in surrounding states, please take notice. Three judges from the 8th, one from the 6th, 9th, and 11th and a state or … Continue reading
CA6: Seizure under SW was valid despite a catchall phrase because it was severable; suppression of phone search reversed
Defendants were suspected of committing a series of home invasion robberies, and they were charged with racketeering. The district court suppressed the searches of their phones for the use of language too general. The government concedes there was an overbroad … Continue reading
E.D.N.Y.: Gov’t doesn’t satisfy burden for gag order re grand jury subpoena for email records
The government’s conclusory statement in a grand jury subpoena that a gag order was needed is inadequate to satisfy the requirement of the Stored Wire and Electronic Communications and Transactional Records Access, 18 U.S.C. § 2701 et seq. In re … Continue reading
C.D.Ill.: The conditions precedent for this anticipatory warrant were vague, but it still wasn’t unreasonable when finally executed
The conditions precedent for execution of this anticipatory warrant were vague, but not so vague that it was unreasonable when executed. “The Court … finds and recommends that both triggering events for the warrant occurred. Moreover, even if those events … Continue reading
AR: State’s auto insurance database isn’t up to date, but missing insurance record is still PC for a stop
A computer check showed defendant’s vehicle insurance was cancelled, although the database was admittedly often not current with this warning: “The insurance information is provided by the Department of Finance and Administration. Valid insurance policies may exist that are not … Continue reading
The Atlantic: The Populist Right’s Elitist Approach to Surveillance Abuses
The Atlantic: The Populist Right’s Elitist Approach to Surveillance Abuses by Conor Friedersdorf: If only the Republican Party were as attentive to the violations of the rights of ordinary Americans as it is to the FBI’s treatment of Donald Trump.
CA6: SW for house where CP was created and sex trafficking occurred wasn’t stale after two months
Defendant was convicted of creating child pornography and sex trafficking minors. The search warrant was issued two months after the last act, but the list of acts (photography of CP; beatings) that occurred in defendant’s residence and the things sought … Continue reading
TN: Where BAC forensic testing budget depends on convictions, due process violated
A state fee for forensic testing of BAC in the TBI that depends on convictions is essentially a contingent fee for conviction. The TBI forensic team are not adjudicators in the Tumey–Ward due process analysis, but it is clear that … Continue reading
Legal IntBeware: Texts and Wearable Data Must Be Preserved, Too
Legal IntBeware: Texts and Wearable Data Must Be Preserved, Too by Joseph Francoeur, Michelle Vizzi and Sade A. Forte: Attorneys need to be aware of technological advances in terms of preservation of evidence and new avenues for seeking relevant evidence. … Continue reading
MN: Exclusionary rule doesn’t apply in civil eviction
The landlord was changing all the locks in an apartment complex for uniformity and warned the tenants. They showed up at defendant’s apartment and knocked, but defendant didn’t answer. They tried unlocking the door but the master key didn’t work. … Continue reading
NJ: Affidavit for SW doesn’t need to be turned over at bail hearing where arrest doesn’t rely on SW under NJ law
When the state is not relying on the product of a search warrant for its arrest warrant, it does not have to disclose the search warrant affidavit under state law at the detention hearing – it can wait until later … Continue reading
CA5: Ptf’s civil Franks claim survives QI; def officer omitted material exculpatory evidence that led to ptf’s 15 min aquittal of murder
Plaintiff spent 16 months in jail awaiting trial for murder. He was acquitted in 15 minutes. He sued all the officers. After a prior appeal (Winfrey v. San Jacinto Cty., 481 Fed. Appx. 969 (5th Cir. 2012)), all that remains … Continue reading
GA: Affidavit as a whole made nexus with clear inference sought after evidence would be found
The affidavit for the search warrant as a whole made a clear inference that the evidence sought would be in the defendant’s house. The rule adopted by the court of appeals is too broad, but the decision is still affirmed. … Continue reading
Cato: The Fourth Amendment Still Applies Online
Cato: The Fourth Amendment Still Applies Online by Ilya Shapiro and Aaron Barnes: