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- IN: Overdose call led to EMS telling police what they saw and that led to SW
- NY1: A mental health defense waives REP in the medical records about it
- MA: When a likely Franks violation comes out at trial, def gets to reopen the suppression issue
- RI: Challenge to one sentence of 8-page cell phone records SW fails; totality has to be considered
- WaPo: Subpoena bill would curtail secretive tool used to target government critics
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ABA Journal Web 100, Best Law Blogs (2015-17) (then discontinued)
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by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com
Search and Seizure (6th ed. 2025)
www.johnwesleyhall.com -
© 2003-26,
online since Feb. 24, 2003 Approx. 600,000 visits (non-robot) since 2012 Approx. 50,000 posts since 2003 (29,000 on WordPress as of 12/31/25) -
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Fourth Amendment cases, citations, and links -
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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)
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“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, Let it Bleed (album, 1969) -
"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] -
“Children grow up thinking the adult world is ordered, rational, fit for purpose. It’s crap. Becoming a man is realising that it’s all rotten. Realising how to celebrate that rottenness, that’s freedom.”
– John le Carré, The Night Manager (1993), line by Richard Roper -
"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) -
The book was dedicated in the first (1982) and sixth (2025) editions to Justin William Hall (1975-2025). He was three when this project started in 1978.
Website design by Wally Waller, Colorado Springs. 
Category Archives: Privileges
OH5: DTF officer can ask marked car to make stop
A DTF officer surveilling defendant who saw a traffic offense could ask a marked car to make a traffic stop. State v. Streeter, 2026-Ohio-1668 (5th Dist. May 5, 2026).* In the Fulton County 2020 ballot seizure and return case, the … Continue reading
E.D.Va.: SW for WaPo’s reporter’s home and devices violated Privacy Protection Act
The search warrant for a Washington Post reporter’s computers, phone, and files violated the Privacy Protection Act because it was not evidence of a crime or contraband. It also implicates prior restraint on speech. The USMJ’s order that the court … Continue reading
E.D.Va.: SWs don’t have to specify how they’re executed; photos of posed hands not suppressed
The warrant here required “photographing his hands, fingers, and forearms.” The search warrant’s particularity wasn’t violated by manipulating his hands to allegedly mimic what was seen in child pornography photographs off his computer. Search warrants don’t have to specify how … Continue reading
WaPo: Second judge maintains DOJ can’t search data seized from Post reporter
WaPo: Second judge maintains DOJ can’t search data seized from Post reporter by Perry Stein& Aaron Schaffer (“The Justice Department had taken a phone and computers belonging to The Washington Post’s Hannah Natanson as part of a leak investigation.”) The … Continue reading
W.D.N.Y.: Civil discovery dispute denies access to other employees’ cell phones as 4A issue
In an employment action against a city, plaintiff sought discovery of messages on cell phones. Making the city seek them raises Fourth Amendment concerns under O’Connor v. Ortega. Reynolds v. City of Rochester, 2026 U.S. Dist. LEXIS 93293 (W.D.N.Y. Apr. … Continue reading
E.D.Mich.: Possible 5A violation in obtaining cell phone passcode mooted by inevitable discovery; they’d get into it anyway
The government obtained defendant’s cell phone passcode by questioning him. Despite the potential Fifth Amendment violation, the court finds that the cell phone would have been opened by the government’s forensics team anyway, so inevitable discovery applies. United States v. … Continue reading
DE: Lack of binding authority for 5A cell phone thumbprint claim means it’s denied
Trial counsel didn’t challenge the use of defendant’s thumbprint to access his cell phone, acknowledging case law against it being testimonial. “It does not appear that either this Court or the United States Supreme Court has addressed the issue. Nor … Continue reading
MN: Physician-patient privilege doesn’t exempt medical records from SW
Nonprivileged information in a patient’s medical records does not automatically become privileged when it is transmitted to or acquired by a healthcare provider. The physician-patient privilege statute does not prohibit a district court from issuing an order granting the State’s … Continue reading
E.D.Va.: WaPo SW: gov’t squandered deference by failing to cite Privacy Protection Act
WaPo reporter search warrant: The government failed to even acknowledge the Privacy Protection Act of 1980 in its warrant application. “The government’s conduct has disturbed that baseline posture of deference” that it always gets. In re Search of the Real … Continue reading
W.D.Okla.: Def bears no burden on applying crime-fraud exception to his cell phone search
The government seized this Oklahoman’s cell phone and searched it with a warrant. Oklahoma is largely marijuana legal. Pleading the crime-fraud exception, the government bears the burden of segregating the valid conversations from the federal conspiracy allegations. Defendant bears no … Continue reading
S.D.N.Y.: No REP in what is shared with a cloud AI program
There is no reasonable expectation of privacy in what is shared with a cloud AI program, even if it’s in anticipation of litigation. Therefore, no attorney-client privilege in what the client shares with AI trying to help his attorney. United … Continue reading
ID: There is no legal privilege in pharmacy records
There is no legal privilege in pharmacy records. Pharmacists are independent actors in the medical field. The trial court erred in granting a motion in limine. Just because a psychotherapist prescribed a drug isn’t privileged. State v. Borek, 2026 Ida. … Continue reading
The Intercept: FBI Raid on WaPo Reporter’s Home Was Based on Sham Pretext
The Intercept: FBI Raid on WaPo Reporter’s Home Was Based on Sham Pretext (“On Wednesday morning, the FBI raided the home of Washington Post journalist Hannah Natanson in an alarming escalation of the Trump administration’s war on press freedom. The … Continue reading
VA: Refusal to comply with DNA warrant for 12 days was relevant evidence under 403
Defendant’s simple [nonaggressive] refusal to comply with a search warrant for his DNA for 12 days was admissible at trial. [There’s also a prior discussion that suggests harmless error.] Lee v. Commonwealth, 2026 Va. App. LEXIS 32 (Jan. 13, 2026). … Continue reading
KY: Def needs to make a record on how long the drug dog extended the stop under Rodriguez
The drug dog arrived while the traffic tickets were still being written. All the record shows is that. The record doesn’t “reveal how much time elapsed between the canine’s arrival and it alerting to the odor of unlawful drugs emanating … Continue reading
CA9: 5A takings clause doesn’t support damages claim during SWAT siege; concurrence seemingly finds 4A privilege
Pena v. City of L.A., 158 F.4th 1033 (9th Cir. 2025). From the Syllabus:
D.D.C.: Use of biometrics to access a cell phone is not testimonial
The use of biometrics to access a cell phone is not testimonial. United States v. Blythe, 2025 U.S. Dist. LEXIS 231852 (D.D.C. Nov. 23, 2025) (interesting read). Just because defense counsel didn’t appeal a losing Fourth Amendment issue doesn’t make … Continue reading
OH6: Def’s medical records from hospital required SW not GJ subpoena
Defendant’s hospital records were obtained by grand jury subpoena. He moved to suppress claiming that he had a reasonable expectation of privacy and a warrant was required. The court agrees, rejecting numerous arguments from the state. In addition, the court … Continue reading
VA: Second frisk was still with RS
Defendant’s second frisk was valid, despite a prior frisk not finding anything. “We have no doubt that the situation here presented such circumstances, on the heels of a possible armed robbery with suspects on the scene and the whereabouts of … Continue reading
The Guardian: Kansas county to pay more than $3m over police raiding local newspaper
The Guardian: Kansas county to pay more than $3m over police raiding local newspaper by Lucy Campbell (“Marion county agrees to apologize over 2023 raid that led to national outcry over press freedom, said newspaper’s editor”)