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Recent Posts
- VA: Outline of a gun in def’s pocket was RS
- N.D.Ind.: Motion to suppress was near denial of standing by disavowing relationship with premises
- W.D.N.Y.: Def had no standing in a place he wasn’t allowed to be on parole
- CA11: QI for FBI SWAT raiding wrong house at 3:30 am
- NYLJ: Analysis: Turnabout: Cell Site Location Information for the Defense
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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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"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 2018
PA: Protective sweep justified by sounds of multiple people inside and delay in answering door
The sound of multiple people inside a house before anybody came to the door then seeing armor piercing ammunition inside the door justified a protective sweep. Commonwealth v. Hall, 2018 PA Super 319, 2018 Pa. Super. LEXIS 1266 (Nov. 28, … Continue reading
wired: Deputy AG Rod Rosenstein Is Still Calling for an Encryption Backdoor
wired: Deputy AG Rod Rosenstein Is Still Calling for an Encryption Backdoor by Lily Hay Newman: TENSION HAS EXISTED for decades between law enforcement and privacy advocates over data encryption. The United States government has consistently lobbied for the creation … Continue reading
CA9: SW for stolen property in def’s house wasn’t stale despite it being a month
Defendant’s thumb print on a beer can found in a burglarized house was a reasonable inference he was involved. The search warrant for his house for stolen property wasn’t stale because it was reasonable to believe he would still be … Continue reading
W.D.Tenn.: Anonymous crimestoppers report was uncorroborated and did not provide probable cause
An anonymous crimestoppers report was uncorroborated and did not provide probable cause for a search. United States v. Allgood, 2018 U.S. Dist. LEXIS 200729 (W.D. Tenn. Nov. 28, 2018):
TX4: Visitor’s property searched during SW for premises is governed by possession test: was the person in actual possession at the time?
Texas follows the possession test for searches of personal belongings of visitors found during a search of premises. Thus, defendant’s purse was not in her actual personal possession at the time of the entry and searches, so it was not … Continue reading
OH5: A mandated CP reporter isn’t a state actor
The fact AOL is a mandated reporter of child pornography that it discovers does not make AOL a state actor in its discovery of child pornography. Thus, AOL’s search of the email was a private search. Then there was a … Continue reading
Human Rights Watch: =Dark Side: Secret Origins of Evidence in US Criminal Cases
Human Rights Watch: Dark Side: Secret Origins of Evidence in US Criminal Cases
upturn.org: The Illusion of Accuracy / How Body-Worn Camera Footage Can Distort Evidence
upturn.org: The Illusion of Accuracy / How Body-Worn Camera Footage Can Distort Evidence (Nov. 2017)
DE: Lack of temporal limitation in data search only results in suppression of the excess, not all
The search warrant for information was based on probable cause, but it lacked a temporal limitation. That, however, doesn’t lead to suppression of the whole; just suppression of that which was obtained that predates the probable cause. State v. Anderson, … Continue reading
Above the Law: Alexa On The Witness Stand Is Going To Be Killer For Privacy
Above the Law: Alexa On The Witness Stand Is Going To Be Killer For Privacy by Elie Mystal:
E.D.N.Y.: Partially redacted aff for SW admissible to show consciousness of guilt
The government gets to use the affidavit for search warrant but partially redacted to show defendant’s consciousness of guilt. United States v. Zhong, 2018 U.S. Dist. LEXIS 199848 (E.D. N.Y. Nov. 26, 2018). A firearm found in a search of … Continue reading
D.Md.: Obtaining defendant’s CSLI six years before Carpenter was lawful; no 2255 relief
Obtaining defendant’s CSLI six years before Carpenter was lawful, and it doesn’t form a basis for relief now. Osiomwan v. United States, 2018 U.S. Dist. LEXIS 200033 (D. Md. Nov. 27, 2018).* Defendant’s statements to the police were voluntary despite … Continue reading
E.D.Mich.: It was a reasonable inference for the USMJ that persons who possess firearms usually do so at home
It was a reasonable inference for the USMJ that persons who possess firearms usually do so at home. Therefore, there was probable cause for the search warrant. United States v. Bland, 2018 U.S. Dist. LEXIS 199111 (E.D. Mich. Nov. 26, … Continue reading
Cal.2: SWs must be executed reasonably, and facts determine who has the burden of proof
A search warrant must be executed reasonably, and it depends on which side has knowledge of what for the burden of proof. Here, the issue involves a blood draw at a hospital, and defendant has access to that information, and … Continue reading
CA9: PC was so lacking for two tracking warrants that GFE does not apply
Probable cause for two tracking warrants was so completely lacking that it was unreasonable to rely on them, and the good faith exception does not apply. United States v. Lopez-Zuniga, 2018 U.S. App. LEXIS 33096 (8th Cir. Nov. 26, 2018):
TX1: No REP in a contraband cell phone in a halfway house
There is no reasonable expectation of privacy in a contraband cell phone possessed by a sex offender in a halfway house. The phone was subject to search like any other personal property, and defendant had a prohibition against possession of … Continue reading
CA9: Question about telephone number before Miranda warning wasn’t protected by warning
Question about defendant’s telephone number prior to his Miranda warning wasn’t covered by Miranda. The phone number linked defendant to a dropbox account with child pornography. United States v. Chilaca, 2018 U.S. App. LEXIS 33136 (9th Cir. Nov. 26, 2018). … Continue reading
SCOTUSBlog: Argument analysis: “Contempt of cop” — Justices search for compromise standard for First Amendment retaliatory arrests
SCOTUSBlog: Argument analysis: “Contempt of cop” — Justices search for compromise standard for First Amendment retaliatory arrests by Howard M. Wasserman: