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- Lawfare: How Google’s Location History Program Could Upend Digital Surveillance Law
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- D.P.R.: Indictment for possession of switches to convert handguns to machine guns justified vehicle search when defendant was stopped
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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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--Electronic Communications Privacy Act (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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Daily Archives: August 24, 2019
CA9: Riley no basis for successor habeas
A successor habeas isn’t a way to raise a Riley cell phone search claim. Young v. Pfeiffer, 2019 U.S. App. LEXIS 23923 (9th Cir. Aug. 22, 2019). There was reasonable suspicion to continue the detention from unusual nervousness, inconsistent stories … Continue reading
S.D.Ind.: Border search of ESI led to def being released then SW for house month later
After a border search of electronic media finding some probable child pornography, officers let defendant go, then showed up at his house a month later with a search warrant and found more. United States v. Skaggs, 2019 U.S. Dist. LEXIS … Continue reading
DC: Probationer on GPS monitoring could be checked against crime data to connect him to crime without violating 4A
Defendant was on supervised release and was required to wear a GPS monitor. After a crime, probation officers checked to see if perchance any of their probationers were at the scene at the time, and defendant was. The examination of … Continue reading
W.D.Ky.: There is no suppression remedy for obtaining IP information from Facebook
IP information from Facebook is not subject to suppression by statute. There are civil and criminal penalties, and that’s it. As for the search warrant for his house, it was constitutionally particular. United States v. Carter, 2019 U.S. Dist. LEXIS … Continue reading
CA9: A manual border search of a cell phone doesn’t require RS, but a forensic search does
A manual border search of a cell phone doesn’t require reasonable suspicion. A forensic search, however, requires reasonable suspicion. United States v. Cano, 2019 U.S. App. LEXIS 24457 (9th Cir. Aug. 22, 2019). Summary by the court:
D.Ariz.: IRS seizure of funds in registry of court not 4A violation
IRS seizure of funds in the registry of the court invades no Fourth Amendment interest of the taxpayer. United States v. Bigley, 2019 U.S. Dist. LEXIS 142220 (D. Ariz. Aug. 20, 2019).* No showing that ICE raid was conducted egregiously … Continue reading
CA9: Detaining juveniles five hours after PC dissipated was unreasonable and contrary to well-established law
“It is well-established that a ‘person may not be arrested, or must be released from arrest, if previously established probable cause has dissipated.’ United States v. Ortiz-Hernandez, 427 F.3d 567, 574 (9th Cir. 2005) (per curiam). ‘As a corollary … … Continue reading
OH10: 1st time CI’s admission of own crimes aided his credibility
First time CI’s admission of own criminal involvement bolstered his credibility for use in probable cause. State v. Mendoza, 2019-Ohio-3382, 2019 Ohio App. LEXIS 3457 (10th Dist. Aug. 22, 2019). There was probable cause for issuance of the search warrant. … Continue reading
CA6: Mere negligent inclusion of information in SW affidavit doesn’t overcome QI for civil Franks claim
Mere negligence in an alleged false statement in a search warrant affidavit isn’t enough to overcome qualified immunity for a civil Franks claim. Butler v. City of Detroit, 2019 U.S. App. LEXIS 25062 (6th Cir. Aug. 22, 2019):
W.D.Tenn.: Driving one’s car to ER and going in isn’t abandonment; dead battery doesn’t remove exigency for automobile exception
Having been shot, defendant did not abandon his car when he drove to the ER and went in, leaving his keys in the car at the entrance. The fact the battery was dead in the car didn’t remove the exigency. … Continue reading
OH9: Any violation of 48 hour rule for PC determination has no effect on seizures prior to it
Any violation of the 48 hour rule to get defendant a judicial probable cause determination before further detention has nothing to do with seizures occurring before that. State v. Gedeon, 2019-Ohio-3348, 2019 Ohio App. LEXIS 3426 (9th Dist. Aug. 21, … Continue reading
CA6: District Court’s limited record prevents finding cell phone search was reasonable or inevitable discovery or GFE applied
Defendant was found passed out in a car. Defendant’s cell phone was seized as evidence, apparently of how he almost OD’d. An accidental glimpse at defendant’s phone revealed a thumbnail of potential child pornography. The district court applied the wrong … Continue reading
CA6: Pointing gun at teenagers in a car wreck for no apparent reason violated clearly established 4A law
Pointing a gun for two minutes at nonthreatening teenagers in a car wreck violated clearly established Fourth Amendment law. Vanderhoef v. Dixon, 2019 U.S. App. LEXIS 24897 (6th Cir. Aug. 21, 2019). Plaintiff is a frail 76-year-old man who came … Continue reading