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- W.D.Ark.: Parole search waiver moots lack of PC argument
- AR: RS shown for boating while intoxicated stop
- W.D.Mo.: Wrong address in SW wasn’t fatal where right house was searched
- NY: Failure to show independent source for officer’s observation of def required reversal
- VA: Outline of a gun in def’s pocket was RS
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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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General (many free):
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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)
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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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Category Archives: Border search
DC: Search of probationer’s GPS monitor didn’t require a SW
Defendant was on GPS electronic monitoring while on probation. The search of his EM device to prove he was involved in a robbery was not unreasonable. Moreover, even if the probation department’s regulations were somehow violated, the exclusionary rule should … Continue reading
S.D.Fla.: Scrolling through electronic devices at the border is reasonable in CA11
Merely scrolling through an electronic device at the border is a reasonable border search. United States v. Vrdoljak, 2023 U.S. Dist. LEXIS 208332 (S.D. Fla. Nov. 20, 2023). The officer was incidentally following defendant, and he observed her driving within … Continue reading
The Intercept: LexisNexis Sold Powerful Spy Tools to U.S. Customs and Border Protection
The Intercept: LexisNexis Sold Powerful Spy Tools to U.S. Customs and Border Protection by Sam Biddle (“The data brokerage giant sold face recognition, phone tracking, and other surveillance technology to the border guards, say government documents.”)
Lexology: Outlier or Trend? A Possible Narrowing of the Border Search Exception for Electronic Devices
Lexology: Outlier or Trend? A Possible Narrowing of the Border Search Exception for Electronic Devices (“As we wrote in a note back in December 2020, the border search exception to the Fourth Amendment is a powerful investigative tool relied on … Continue reading
CA11: Gov’t adequately protected against A-C materials being searched in border search of Venezuelan attorney’s cell phone; “no privileged material was ever found”
Defendant was a Venezuelan attorney whose cell phone was searched at the border. He said there likely was privileged attorney-client information on his phone, but it was searched under a DHS protocols to safeguard privileged information and legal advice was … Continue reading
DE: When defense to rape is consent, 4A claim against DNA test doesn’t matter
Where the defense was consent, the alleged ineffective assistance of counsel in failing to move to suppress DNA results can’t be ineffectiveness. State v. Elder, 2023 Del. Super. LEXIS 770 (Sep. 13, 2023).* CBP officers used an “escort hold” on … Continue reading
CA5: Riley does not apply to border searches of cell phones
The search of defendant’s cell phone at the border was reasonable. The court will not apply Riley to border searches. Malik v. United States Dep’t of Homeland Sec., 2023 U.S. App. LEXIS 21307 (5th Cir. Aug. 15, 2023). “The undersigned … Continue reading
CA5: No preliminary injunction for copying attorney cell phone at border
An immigration attorney who claimed the government copied his cell phone four times after he returned from other countries wasn’t entitled to a preliminary injunction. “Government retention of unlawfully seized property is not sufficient, standing alone, to establish irreparable injury.” … Continue reading
CA5: Only RS needed for a routine manual border search of a cell phone
The Fifth Circuit follows other circuits to require only reasonable suspicion for a routine manual border cell phone search. Having found child pornography, the government could keep looking. “He argues that the government violated the Fourth Amendment by conducting the … Continue reading
Techstory: Cellphone Border Searches: Feds, You’ll Need a Warrant
Techstory: Cellphone Border Searches: Feds, You’ll Need a Warrant by Sneha Singh (“In a groundbreaking ruling, a federal district judge declared that authorities must obtain a warrant before searching an American citizen’s cell phone at the US border, except in … Continue reading
S.D.N.Y.: Copying cell phone at border was unreasonable, but GFE and a later SW saved it
Defendant’s cell phone was copied when he came back to Newark airport after a flight to Jamaica. “As such, the Court concludes that the Government may not copy and search an American citizen’s cell phone at the border without a … Continue reading
CA8: Exit border search of electronic devices was based on reasonable suspicion
There was reasonable suspicion for defendant’s intensive exit border search of his electronic devices. “The officers and agents had background information, much of it corroborated, that provided a basis for assessing Xiang’s actions in May and June 2017. Their experience … Continue reading
OH9: Growing house fire next door was exigency to clear def’s house
Defendant’s next door neighbor’s house caught on fire, and police at the scene acted reasonably in entering his house to clear it when the fire grew and they reasonably feared it would spread to the houses next door. State v. … Continue reading
S.D.W.Va.: This border search of cell phone was routine, despite taking 4 hours
The border search of defendant’s cell phone was routine and reasonable and didn’t need reasonable suspicion. He provided the passcode, and the phone was on airplane mode so it did not go outside the phone. United States v. Tick Chin, … Continue reading
D.N.J.: No 6A right to have counsel present at execution of a DNA warrant in the jail
There is no Sixth Amendment right for counsel to be present when a DNA sample is taken from defendant at the jail by warrant. United States v. Hubbard, 2023 U.S. Dist. LEXIS 3661 (D.N.J. Jan. 9, 2023). CBP had reasonable … Continue reading
PA: State’s statement of issues for review didn’t include the precise issue argued so it’s waived
The state in its statement of issues below addressed probable cause but did not mention inevitable discovery. That amounted to a waiver. “The inevitable discovery doctrine is not a subsidiary issue to a claim of adequate probable cause to support … Continue reading
WaPo: Customs officials have copied Americans’ phone data at massive scale
WaPo: Customs officials have copied Americans’ phone data at massive scale by Drew Harwell (“Contacts, call logs, messages and photos from up to 10,000 travelers’ phones are saved to a government database every year.”)https://www.washingtonpost.com/technology/2022/09/15/government-surveillance-database-dhs/ And weren’t we told when this … Continue reading
CA3: Customs searches occur to and from VI; here bag was put into baggage claim to see who claimed it
Customs can search bags coming to and from the Virgin Islands. Here, bags on an airplane were searched and it was returned to baggage claim to see who picked it up, and that was reasonable. United States v. Forde, 2022 … Continue reading
WaPo: As lethal fentanyl flows across Mexico border, CBP tries powerful scanning technology
WaPo: As lethal fentanyl flows across Mexico border, CBP tries powerful scanning technology by Nick Miroff (“With fatal drug overdose deaths in the United States soaring to record levels, Congress has directed U.S. Customs and Border Protection to come up … Continue reading