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ABA Journal Web 100, Best Law Blogs (2017); ABA Journal Blawg 100 (2015-16) (discontinued 2018)
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© 2003-23,
online since Feb. 24, 2003 Approx. 350,000 visits (non-robot) since 2012 Approx. 45,000 posts since 2003 (25,700+ on WordPress as of 12/31/22)~~~~~~~~~~~~~~~~~~~~~~~~~~
Fourth Amendment cases,
citations, and linksLatest Slip Opinions:
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To search Search and Seizure on Lexis.com $Research Links:
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Federal Law Enforcement Training Center Resources
FBI Domestic Investigations and Operations Guide (2008) (pdf)
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Stringrays (ACLU No. Cal.) (pdf)
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)
--Federal Laws Relating to Cybersecurity: Discussion of Proposed Revisions (2012)
ACLU on privacy
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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!”
"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."
---Pepé Le Pew
—Johnson v. United States, 333 U.S. 10, 13-14 (1948)
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Category Archives: Reasonable expectation of privacy
D.N.M.: Greyhound’s cooperation with the DEA doesn’t give rise to a 4A cause of action against it
Just because Greyhound cooperates with the DEA in Albuquerque doesn’t mean it can be sued there under the Fourth Amendment. Fernandez v. Greyhound Lines, Inc., 2023 U.S. Dist. LEXIS 211564 (D.N.M. Nov. 28, 2023). Homeless in Los Angeles likely had … Continue reading
CA11: Def claims he was talking with a VA clinician, but it was a CI; no REP in conversation
Defendant was ultimately accused of theft of government funds and false statements about his VA benefits. A phone call with an informant was recorded. He claims he thought it was a clinician with whom he had a reasonable expectation of … Continue reading
N.D.Cal.: No REP in a computer possessed in a halfway house
Plaintiff had no reasonable expectation of privacy in a computer given him by Goodwill for whom he worked while he was living in a halfway house. He was still an inmate of the BOP. “There is no reasonable or legitimate … Continue reading
E.D.N.C.: Posting political candidate’s address online violated no REP
A candidate running for office had his address posted online, and this did not violate any reasonable expectation of privacy or Fourth Amendment right. His voter registration address was already online. Sharma v. Hirsch, 2023 U.S. Dist. LEXIS 202163 (E.D.N.C. … Continue reading
E.D.Ky.: Overnight guest ordered out no longer had REP
Defendant was an overnight guest, but the homeowner told him to get out and called the police on him because he was tearing the place up. “The Court finds it doubtful that “society is prepared to recognize as reasonable” Starghill’s … Continue reading
CA10: No REP against officer running an LPN
There is no reasonable expectation of privacy in a license plate number. Officers can run any LPN number. They can also walk up to his car in his driveway and look at it. Becerra v. City of Albuquerque, 2023 U.S. … Continue reading
CA4: No absolute immunity for a judge involved in search of ex’s property over their divorce
“We consider in this appeal whether a judge who participates in the search of a litigant’s home is entitled to judicial immunity for actions related to the search. Judge Louise Goldston went to Matthew Gibson’s residence to look for items … Continue reading
N.D.N.Y.: No REP in def’s social media accounts holding child porn
In a child porn case, defendant can’t show a reasonable expectation of privacy in images in his social media account. “For example, Defendant has not attested as to how he used the social media accounts, what if any privacy settings … Continue reading
E.D.Wis.: No REP in common area of apt building, despite state law to contrary
Rejecting state law to the contrary, the district court holds that there is no reasonable expectation of privacy in the common area of an apartment building under the Fourth Amendment. United States v. Love, 2023 U.S. Dist. LEXIS 186921 (E.D. … Continue reading
CO: REP in Google search history which also implicates freedom of expression
“First, the court concludes that, under the Colorado Constitution, the defendant has a constitutionally protected privacy interest in his Google search history even when revealed only in connection with his IP address and not his name and that, under both … Continue reading
W.D.Va.: No objective REP in hospital room against police entry to question about shooting
Plaintiff did not have an objective reasonable expectation of privacy in preventing entry into his hospital room by law enforcement officers investing his shooting. Stoots v. Sparti, 2023 U.S. Dist. LEXIS 175529 (W.D. Va. Sep. 29, 2023). “Nor does the … Continue reading
PA: LPR systems don’t violate motorists REP
“Whether use of a License Plate Reader (‘LPR’) system to track Appellant’s movements is a search under the Fourth Amendment is a question of first impression before this Court. The purpose a license plate attached to a vehicle is to … Continue reading
S.D.N.Y.: Employee has no standing in office common area
Under Mancusi v. Deforte, an employee has no standing in the open area of the office where he or she works, as opposed to one’s private office. United States v. Johnson, 2023 U.S. Dist. LEXIS 154559 (S.D.N.Y. Aug. 31, 2023). … Continue reading
TX2: Merely stating there is a REP in a cell phone doesn’t make it a 4A argument
“In one sentence in this section of his brief, Nash also argues that courts have found that a cell phone user has a reasonable expectation of privacy in the user’s phone’s contents. Nash does not challenge the evidence that the … Continue reading
D.Minn.: Govt’s learning of another potential crime from “sneak and peak” SW wasn’t entrapment
The government suspected defendant of acquiring a pill press and got a sneak and peak warrant to look around and photograph inside his place. Later, they got a search warrant for the place and seized drugs. The government’s knowledge of … Continue reading
Lawfare: Data Isn’t Property. It Doesn’t Have to Be.
Lawfare: Data Isn’t Property. It Doesn’t Have to Be. by Mailyn Fidler:
OH10 finds that medical records are sufficiently analogous to CSLI that a SW is required to get them
OH10 finds that medical records are sufficiently analogous to CSLI that there is a reasonable expectation of privacy and a search warrant, not a subpoena, is required. State v. Rogers, 2023-Ohio-2749, 2023 Ohio App. LEXIS 2707 (10th Dist. Aug. 8, … Continue reading
E.D.Mich.: PC to believe a person lives at a particular address can be wrong and still be sufficient
Probable cause to believe a person lives at a particular address can be wrong and still be sufficient. “Vaughn also challenges the sufficiency of the affidavit on the ground that it failed to establish probable cause that he lived at … Continue reading
CA3 adopts two part functional rule of private search, and this one was
Defendant’s wife was not acting as an agent of the state when she procured defendant’s cell phone which produced evidence of sexual exploitation of a child. “Four of our sister Courts of Appeals assess whether a private party was an … Continue reading
