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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 (27,400+ on WordPress as of 7/23/24) -
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Fourth Amendment cases,
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Congressional Research Service:
--Electronic Communications Privacy Act (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: Privileges
OH4: Return of cell phone denied; it’s still potential evidence, and part of delay is refusing to give passcode
“Based on our review of the record, we find the trial court did not abuse its discretion in denying Smith’s motion for return of his electronic devices. At the time of Smith’s request, it appears that the property was still … Continue reading
CA5: The 4A doesn’t limit the number of officers that show up for an administrative search
This administrative search was valid. The number of officers showing up to do it isn’t a constitutional question. “Nor does the number of officers conducting the search change the inquiry. Hershner asserts no jurisprudential authority for the proposition that a … Continue reading
The Conversation: Police stop more Black drivers, while speed cameras issue unbiased tickets − new study from Chicago
The Conversation: Police stop more Black drivers, while speed cameras issue unbiased tickets − new study from Chicago by Wenfei Xu, David Levinson, Michael J Smart & Nebiyou Yonas Tilahun:
MA: Investigative equal protection claim can be enforced by DA’s discovery failure
Defendant raised an equal protection claim about discovery of ShapChat search warrants. Defense counsel stated that an informal survey of defense lawyers handling about 1/4th of the cases in Suffolk County showed that 85% of the warrants were against black … Continue reading
CA7: SW affiant doesn’t have to explore all of def’s possible defenses in affidavit
When the affiant officer establishes probable cause for a search warrant, he or she isn’t required to explore all the defenses or affirmative defenses the search target may have to put in the affidavit. Here, this arose in the context … Continue reading
D.C.Cir.: SW for multiple cell phones was valid because all were shown to be involved
This search warrant for multiple cell phones showed enough that multiple cell phones were involved in the offense under investigation, and, thus, the warrant was not overbroad, distinguishing United States v. Griffith, 867 F.3d 1265 (D.C. Cir. 2017) where there … Continue reading
NY1: Evidence of failing to open door when police are there with a SW doesn’t violate 4A
“Defendant did not preserve his claim that the admission of evidence that he did not open the door when the police knocked to show his consciousness of guilt violating his Fourth Amendment rights and his right to a fair trial … Continue reading
IA: Court ordered privilege review of search was at its expense
When the court orders privilege review for the results of a search, it’s a court expense. State v. Iowa District Court for Emmet County, 2024 Iowa Sup. LEXIS 52 (May 10, 2024). “Lenhart does not assert fraud on the court, … Continue reading
CO adopts Graham for state excessive force claims
Colorado adopts the Graham v. Connor standard for excessive force under state law. Plaintiff stated enough to overcome a motion to dismiss. Woodall v. Godfrey, 2024 COA 42 (Apr. 25, 2024).* “Scafidi’s ‘seizure’ was not unreasonable, because his arrest was … Continue reading
CA5: Deficient privilege log after records search was waiver
After voluminous records were seized with a warrant, defendant’s privilege log was deficient to identify who and what, and that was treated as waiver. United States v. Fluitt, 2024 U.S. App. LEXIS 9983 (5th Cir. Apr. 24, 2024). Defendant was … Continue reading
OR: Police listening to attorney-client jail calls because attorney calls not properly segregated leads to dismissal of some counts and setting aside guilty plea
The jail computer controlled phone system did not properly block attorney-client telephone calls, and the police listened to defense counsel’s conversations with defendant in jail. The police then used that information to supersede the indictment. Prejudice is presumed. State v. … Continue reading
CA6: Asking def before a patdown during arrest what he had on him wasn’t barred by Miranda
Asking defendant before a patdown during arrest what he had on him wasn’t barred by Miranda. United States v. Lester, 2024 U.S. App. LEXIS 9162 (6th Cir. Apr. 16, 2024). The evidence supports the trial court’s conclusion defendant consented to … Continue reading
CA9: Compelled use of fingerprint to open a cell phone didn’t violate 5A
Police forcing defendant parolee to use his fingerprint to open his cell phone was not testimonial under the Fifth Amendment. It was “cognitive exertion” and akin to taking DNA or a blood draw. United States v. Payne, 2024 U.S. App. … Continue reading
S.D.N.Y.: GJ subpoena for cell phone passcode quashed.
The government’s grand jury subpoena for defendant’s cell phone passcode is quashed because it seeks testimonial information in violation of the Fifth Amendment showing defendant’s knowledge of the contents of the phone. “The Court denies Gray’s Rule 41(g) motion. Even … Continue reading
S.D.N.Y.: There’s a privacy interest in a cell phone passcode, but its disclosure here under a ruse does not lead to suppression
There is a privacy interest in one’s cell phone passode protected by the Fifth Amendment. Here, however, defendant’s disclosure of the passcode in responding to a CBP ruse after a flight from Mexico was not compulsion. United States v. Shvartsman, … Continue reading
OH1: Missing notary seal on SW affidavit not an error of constitutional magnitude, so no suppression
A search warrant isn’t void because the affidavit in support was missing a notary seal. The rest of the statutory requirements were satisfied, and this wasn’t an error of constitutional magnitude. State v. Whittle, 2024-Ohio-1023,2024 Ohio App. LEXIS 958 (1st … Continue reading
NJ: State could get SW for bullet removed during surgery even four years after shooting
Defendant had elective surgery four years after a shooting to remove the bullet. The police were entitled to a search warrant for the bullet from the hospital because it was evidence of a crime. Trial court’s denial of the warrant … Continue reading
D.Minn.: Cell phone that govt can’t open not in its possession for discovery purposes
Defendant’s cell phone is in the possession of the government but it can’t search it because they don’t have the pass code. Defendant’s request for discovery of the phone under Rule 16 is denied because the contents of the phone … Continue reading