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- Volokh: Do Fourth Amendment Protections Change When Property Is Moved?
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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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--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: Rule 41(g) / Return of property
Reason: What Is the FBI Trying To Hide About Its Raid on Innocent Americans’ Safe Deposit Boxes?
Reason: What Is the FBI Trying To Hide About Its Raid on Innocent Americans’ Safe Deposit Boxes? by Eric Boehm (“Federal prosecutors want to keep key details about the planning and execution of the March 2021 raid at U.S. Private … Continue reading
CA6 & FL1: Fact hemp is legal doesn’t make smell of MJ lack PC
The fact that hemp was legal doesn’t make the smell like marijuana a lack of probable cause. United States v. McCallister, 2022 U.S. App. LEXIS 18642 (6th Cir. July 7, 2022) (people in a park); Hatcher v. State, 2022 Fla. … Continue reading
WaPo: Agents seize phone of lawyer who pushed Trump false elector claims
WaPo: Agents seize phone of lawyer who pushed Trump false elector claims by Devlin Barrett (“John Eastman, a lawyer who lobbied for Mike Pence to declare Donald Trump the winner of the 2020 election, is fighting the phone seizure”) The … Continue reading
IA: Admission of SW affidavit at trial with CI’s version violated confrontation
Admission of the search warrant affidavit here at trial with inadmissible hearsay of the CI was a violation of confrontation. State v. Martinez, 2022 Iowa App. LEXIS 410 (May 11, 2022). These search warrant materials remain sealed for one year. … Continue reading
NY Co.: SW for cell phone without time limitation was unreasonable
One search warrant for searching defendant’s phone with Cellebrite was without time limitation and was overbroad. People v. Gonzalez, 2022 NY Slip Op 22074, 2022 N.Y. Misc. LEXIS 928 (N.Y.Co. Mar. 7, 2022). Defendant claimed his jail calls after 48 … Continue reading
DC: Facebook has no right to a SW instead of subpoena for subscriber information on an account
A civil investigative subpoena to Facebook for information about posters of Covid misinformation was not unreasonable. n.3: “Meta suggests that the Fourth Amendment requires the District to obtain a search warrant to get this information. … One sufficient response is … Continue reading
CA8: Def didn’t show REP in hospital room for plain view seizure of clothing
Defendant did not show that he had a reasonable expectation of privacy in his hospital room where police entered and saw his clothes in plain view and seized them. United States v. Mattox, 2022 U.S. App. LEXIS 5747 (8th Cir. … Continue reading
AL: When DEA adopts a seizure for forfeiture, state courts lose jurisdiction to return property
When there’s a seizure for forfeiture and the DEA adopts it, the state court loses jurisdiction to return it. Hare v. Mack, 2022 Ala. LEXIS 8 (Jan. 21, 2022). Police responded to a shots fired call at an apartment where … Continue reading
M.D.N.C.: Return of evidence denied because investigation ongoing
Plaintiff’s action for recovery of electronic and physical evidence seized is denied because the government asserts it is still needed for investigation. Stillwell v. United States, 2021 U.S. Dist. LEXIS 246407 (M.D.N.C. Dec. 28, 2021). Defendant was stopped for driving … Continue reading
N.D.Cal.: Rule 41(g) is for return of things, not suppression of evidence
Rule 41(g) is only for return of seized things, and it can’t be used to suppress evidence, especially in a state court. Christie v. United States, 2021 U.S. Dist. LEXIS 231113 (N.D.Cal. Dec. 2, 2021). Defendant’s motion to suppress cites … Continue reading
WA: HIPAA violation in seizing medical records by SW required their return
The trial court’s order denying return of patient records taken by search warrant from the petitioner youth services provider failed to comply with HIPAA requirements should have been granted. While the records have been returned and the case is otherwise … Continue reading
CA11: Govt filter team for review of seized materials not per se unreasonable; stringent protocol followed
The use of a government filter time to review seized materials implicating the attorney-client privilege is not per se unreasonable. The USMJ ordered compliance with a more stringent protocol than approved in other cases. Injunction denied. In re Sealed Search … Continue reading
CA7: Franks issue moot by other PC
A warrant wasn’t needed to seize a cell phone, but one was to search it, and they had one. Attacking the CI’s credibility fails as an issue, Franks or otherwise, because there is other probable cause for the warrant. United … Continue reading
C.D.Cal.: Money seized from safe deposit boxes ordered returned under Rule 41(g); govt offers no justification to keep it
Plaintiffs had money in safe deposit boxes at United States Private Vaults. The government raided the boxes apparently with probable cause and seized the money pending forfeiture, but it offers no justification for the seizure or continuing to keep the … Continue reading
CA5: Motion for return of property erroneously dismissed; pet’r may have no other remedy
The district court erred in dismissing appellant’s petition for return of documents under Rule 41(g) seized under a warrant with alleged attorney-client privileged materials. If no charges are brought, there will be no motion to suppress. Harbor Healthcare Sys., L.P. … Continue reading
CA2: Failure to promptly return property lawfully seized isn’t separate 4A claim
Where firearms were lawfully seized, there isn’t a separate Fourth Amendment claim for failure to promptly return them. Bello v. Rockland Cty., 2021 U.S. App. LEXIS 13281 (2d Cir. May 5, 2021). Probable cause is required for administrative subpoenas under … Continue reading
MA: Where state CSLI rule was retroactive, obtaining def’s here was harmless error
Defendant’s CSLI was obtained in 2011 in violation of the state constitution [well before Carpenter and state cases]. It is retroactive in this state. But, all things considered, it was harmless byond a reasonable doubt. Commonwealth v. Gumkowski, 2021 Mass. … Continue reading
W.D.N.Y.: 4A ER does not apply to def’s claim records obtained from others were “unreliable”
Defendant’s argument that the records obtained by search warrant from other are unreliable is not a Fourth Amendment exclusionary rule question. United States v. Skinner, 2021 U.S. Dist. LEXIS 84377 (W.D. N.Y. May 3, 2021). A burnt blunt on the … Continue reading
FL1: Def’s setting up date via cell phone app where he sexually battered victim led to PC for SW for his cell phone
Defendant’s victim claimed to the police she was met through a phone app, sexually battered, and robbed. She identified defendant by his truck. “This information would have been enough to obtain a search warrant of Ferguson’s cell phones, even without … Continue reading