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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,
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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)
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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: May 2018
S.D.Fla.: Consent to giving up passwords at border irrelevant since CBP can search anyway
In a border search case, defendant’s consent to produce his passwords doesn’t matter because the government has the authority to conduct a search of incoming electronic equipment. United States v. Vallerius, 2018 U.S. Dist. LEXIS 85620 (S.D. Fla. May 1, … Continue reading
AZ: Trial court didn’t make finding on Strickland IAC prejudice for failure to argue curtilage; remanded
Defense counsel deliberatedly didn’t make a claim officers violated curtilage in their initial entry to defendant’s property. The first search warrant application was rejected by one judge. The affidavit was redrafted with additional facts and presented to a second judge … Continue reading
UT: The fact an electronic warrant application is acted on quickly doesn’t mean reviewing court should be “skeptical” of PC finding
This case started with a cell phone stolen from a customer in a grocery store. The police pinged the phone and it came back as being located at defendant’s house. Police went there to talk to defendant, and he had … Continue reading
Cal: Victim and witness’s public social media pages subject to subpoena by defense (with a history of the SCA)
Murder defendants sought private and public Facebook pages of the victim and state’s witnesses for their defense. The court of appeals quashed, and the court remands. The public pages shall be produced because they are public by consent. There’s a … Continue reading
PA: 9 month delay between issuance of SW for content of seized cell phone and actual search wasn’t unreasonable where nothing changed
Defendant’s cell phone was seized by consent and a search warrant was obtained for it. It took nine months for the search to occur. Because nothing changed between the seizure, the warrant, and the search, the ultimate search was not … Continue reading
The Marshall Project: Your Home is Your…Snitch?
The Marshall Project: Your Home is Your…Snitch? by Daniel Zwerdling: When your appliances work as police informants.
M.D.Fla.: No prejudice for IAC where alleged 4A violation produced nothing for trial
One of defendant’s 2255 claims involved a search of a gun safe that had nothing of evidentiary value in it. It didn’t matter at trial, was a “red herring,” and there could be no prejudice. Belitsky v. United States, 2018 … Continue reading
LA5: Parole officers were stalking horses for police acting without RS
Defendant’s parole search was without reasonable suspicion. In addition, the parole officers were acting at the request of law enforcement officers acting on an unsubstantiated tip, and that’s unreasonable in this state. State v. Clay, 2018 La. App. LEXIS 1004 … Continue reading
WA: Where ptf didn’t know he was being pursued, act of force to knock him from motorcycle doesn’t get qualified immunity
Where plaintiff showed he didn’t know he was being pursued by police while on his motorcycle, the officer’s act of opening his car door to knock him off his bike was a question for the jury, and the officer gets … Continue reading
D.Minn.: No right to being stopped at earliest time
There was reasonable suspicion for defendant’s stop, and it isn’t material that the officer chose to wait a few minutes before making the stop. United States v. Taariq, 2018 U.S. Dist. LEXIS 85630 (D. Minn. May 22, 2018). Plaintiff inmate’s … Continue reading
NYTimes: Calling Your Lawyer’s Cell From Jail? What You Say Can and Will Be Used Against You.
NYTimes: Calling Your Lawyer’s Cell From Jail? What You Say Can and Will Be Used Against You. by Richard A. Oppel Jr.: Most people assume that a conversation with their lawyer will remain confidential. But if the conversation takes place … Continue reading
OR: Def adequately pled 4A and argued substance to preserve issue for appeal
Defendant preserved her Fourth Amendment claim by citing it in the motion and by arguing at the hearing the stop was impermissibly extended. “Although the question is close, we agree with defendant that her Fourth Amendment argument is adequately preserved … Continue reading
KOAT-Albuquerque: Border patrol agent stops two people after they spoke Spanish in Montana
KOAT-Albuquerque: Border patrol agent stops two people after they spoke Spanish in Montana by David Taube:
Wired: A Location-Sharing Disaster Shows How Exposed You Really Are
Wired: A Location-Sharing Disaster Shows How Exposed You Really Are by Brian Barrett:
W.D.Tex.: Stop for jaywalking in high crime area didn’t provide RS to detain to ask about drugs; removing key fob from pocket was 4A violation
Reasonable suspicion for jaywalking didn’t permit questioning about drugs just because defendant was in a high crime area. The use of defendant’s key fob in his pocket violated the Fourth Amendment, following United States v. Craddock, 841 F.3d 756, 760 … Continue reading
S.D.N.Y.: Defense counsel’s affidavit of an alleged Franks violation was speculative
Defense counsel’s conclusion that a video at issue was the same one on a cell phone is speculative at best. “The Court concludes that the detective’s statement that the phone in the surveillance footage appears to be the same as … Continue reading
W.D.Okla.: Facebook warrant for all content not overbroad; didn’t have to limit to communications and messages
The search warrant for defendant’s Facebook was not overbroad, and it didn’t have to be limited to communications and messages. It could be for the entirety of the account for the relevant period. United States v. Varnell, 2018 U.S. Dist. … Continue reading