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Recent Posts
- NE: LEO’s statutory jurisdictional authority is not an unreasonable search and seizure question
- MA: Cell phone call logs don’t require a search warrant
- D.Kan.: Drug dog touching car door handle with nose isn’t unreasonable search
- D.N.M.: DEA’s failure to make a detailed inventory in violation of policy doesn’t require exclusion of evidence
- WaPo: These cities bar facial recognition tech. Police still found ways to access it.
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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: June 2023
NY: Requirement of electronic logging devices of hours trucks are driven is reasonable under NY Const.
Electronic logging devices required under the Federal Motor Carrier Safety Administration adopted in New York survive a facial challenge. “We hold that the warrantless inspections authorized by the regulations fall within the administrative search exception to the warrant requirement and … Continue reading
CA8: Citizen informant’s reports of def having gun in a wheelchair were reliable and provided PC
Citizen informants’ reports of defendant having a firearm in his wheelchair justified the stop and search on probable cause and exigency. United States v. Cunningham, 2023 U.S. App. LEXIS 14638 (8th Cir. June 13, 2023).* Defendant had standing in another … Continue reading
CA10: Despite SW’s overbreadth, executing officers understood the crime under investigation; GFE applies
The warrant was previously held overbroad and the case was remanded to the district court for findings on the good faith exception. In this second appeal, the good faith exception applies. The officers understood the limits in the warrant to … Continue reading
Wired: An Anti-Porn App Put Him in Jail and His Family Under Surveillance
Wired: An Anti-Porn App Put Him in Jail and His Family Under Surveillance by Dhruv Mehrotra (“A court used an app called Covenant Eyes to surveil the family of a man released on bond. Now he’s back in jail, and … Continue reading
CA10: 2255 petitioner learned after guilty plea A-C communications were recorded in jail; no relief from plea because no effect shown
2255 petitioner was in pretrial incarceration in the private jail in Leavenworth which notoriously recorded conversations between attorneys and clients. He pled guilty with the standard 2255 waiver. This violation of his rights does not survive the waiver, and he … Continue reading
S.D.W.Va.: No 4A right to leaving SW at scene of search
Searching officers do not violate the Fourth Amendment by not leaving a copy of the search warrant, let alone the original. Carter v. Luciano, 2023 U.S. Dist. LEXIS 101723 (S.D. W. Va. June 12, 2023).* The search warrant was based … Continue reading
E.D.Cal.: Order to roll down heavily tinted car window is not a search
The order to a motorist to lower his window is not a search, despite the fact the windows were heavily tinted and it made the interior more visible. Two pounds of cannabis on the car seat was probable cause for … Continue reading
NYT: One of the Last Bastions of Digital Privacy Is Under Threat
NYT: One of the Last Bastions of Digital Privacy Is Under Threat by Julia Angwin:
Forbes: U.S. Government Buying ‘Intimate’ Data About Americans, Report Finds
Forbes: U.S. Government Buying ‘Intimate’ Data About Americans, Report Finds by Katherine Hamilton of the Forbes Staff (“Data brokers that collect information from Americans’ phones, web browsers and cars have contracts with numerous government agencies to sell them that data, … Continue reading
ID: Statutory admission of evidence in administrative proceeding is not a separation of powers issue
Admission or exclusion of evidence in an administrative proceeding over a driver’s license is not governed by the rules of evidence, but it does recognize constitutional limitations. That is not a separation of powers issue because it is within the … Continue reading
WaPo: The dos and don’ts of using home security cameras that see everything
WaPo: The dos and don’ts of using home security cameras that see everything by Heather Kelly (“Those same cameras can also put the people who own them at risk. They’re vulnerable to hacks, can collect personal data, and their sensitive … Continue reading
E.D.Mich.: No REP in attorney-client communication in jail 8′ from jailer
Plaintiff’s Fourth Amendment complaint that attorney-client communications in jail were overheard does not survive summary judgment. He was a mere eight feet from the jailer who could clearly overhear everything. There was no reasonable expectation of privacy under the circumstances. … Continue reading
E.D.Wis.: 40 day delay in getting cell phone SW was not unreasonable where def was still in custody and could not possess it
Delays in the case were to work out a plea agreement, not file motions. For that reason, the motion to suppress is denied. On the merits, the 40 day delay in seeking a warrant for his cell phone was reasonable … Continue reading
KY: Officer’s mistake of law on effective date of new traffic law was reasonable and stop not suppressed under Heien
Officer’s mistake of law on the effective date of a new traffic law was reasonable, and the stop would not be suppressed under Heien. Vincent v. Commonwealth, 2023 Ky. App. LEXIS 41 (June 9, 2023):
CA9: Joint Cambodian-U.S. search unlawful under Cambodian law not unlawful here; exclusionary rule not applied
Defendant was the subject of a joint raid in Cambodia by local and U.S. officers. The search of defendant’s room was held unlawful under Cambodian law because there was no written consent of the owner, something with no counterpart in … Continue reading
CA10: Govt has to be shown to have property to be ordered to return it under Rule 41(g)
The district court lacked jurisdiction to order return of property under Rule 41(g) because it could not be shown that the government was in possession of the hard drive defendant sought return of. United States v. Toombs, 2023 U.S. App. … Continue reading
S.D.N.Y.: Surveillance does not have to be constant for PC to exist
Defendant was stopped because officers had reason to believe that he was transporting parts for ghost guns from New England to a gun show in Pennsylvania, and he was stopped in New York City. There is no constitutional requirement that … Continue reading
E.D.Mich.: Telling a detainee in a traffic stop to come to the rear of the car is not an unreasonable seizure
Telling a detainee in a traffic stop to come to the rear of the car is not an unreasonable seizure. United States v. Holmes, 2023 U.S. Dist. LEXIS 99976 (E.D. Mich. June 8, 2023). The trial court erred in suppressing … Continue reading
CA1: Affidavit for CP failed to show any more than child nudity and lacked PC; no GFE either
The search warrant for defendant’s phone was defective and lacked probable cause. Child nudity alone is not child pornography, and the affidavit tracks the statute and doesn’t show that it was pornography. “We hold that the affidavit failed to cross … Continue reading