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- MA: Cell phone call logs don’t require a search warrant
- D.Kan.: Drug dog touching car door handle with nose isn’t unreasonable search
- D.N.M.: DEA’s failure to make a detailed inventory in violation of policy doesn’t require exclusion of evidence
- WaPo: These cities bar facial recognition tech. Police still found ways to access it.
- C.D.Cal.: SW materials in case with weighty public interest ordered unsealed
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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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Congressional Research Service:
--Electronic Communications Privacy Act (2012)
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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!”
---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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Monthly Archives: January 2020
PA: Officer retaining ID means citizen not free to leave and is seized
Retaining a motorist’s identification to run a warrant check was a seizure of the person. No one would feel free to leave under those circumstances. Commonwealth v. Cost, 2020 Pa. LEXIS 315 (Jan. 22, 2020):
MT: If only car color doesn’t match registration and everything else is correct, no RS
The car’s color not matching the registration information is not reasonable suspicion if everything else matches. City of Billings v. Rodriguez, 2020 MT 9 (Jan. 21, 2020). Plaintiff appeals dismissal of his § 1983 case for the officer pulling a … Continue reading
WaPo: Editorial: A scary new facial recognition tool underlines the urgent need for privacy laws
WaPo: Editorial: A scary new facial recognition tool underlines the urgent need for privacy laws (“Privacy Doomsayers have always said the failure to regulate surveillance technology would result in the end of anonymity. But we didn’t realize doom might come … Continue reading
NYTimes: Opinion: DNA Collection at the Border Threatens the Privacy of All Americans
NYTimes: Opinion: DNA Collection at the Border Threatens the Privacy of All Americans by Daniel I. Morales, Natalie Ram and Jessica L. Roberts (“We’re one step closer to the ‘genetic panopticon’ that Antonin Scalia warned us about.”)
Legal Intelligencer: Commentary: Password Protection and the Foregone Conclusion Exception
Legal Intelligencer: Commentary: Password Protection and the Foregone Conclusion Exception by Leonard Deutchman (“In this month’s article, I will review Davis and discuss its reasoning and what the foregone conclusion exception, in the age of computer passwords, tells us about … Continue reading
The Recorder: Analysis: Why Is the Justice Department Knocking Harder at Apple’s Backdoor?
The Recorder: Analysis: Why Is the Justice Department Knocking Harder at Apple’s Backdoor? by Frank Ready (“Apple once again finds itself in the crosshairs of another encryption debate, but placing constant pressure on the company and other tech giants may … Continue reading
NJLJ: ‘Private Enclave’? Supreme Court Deciding Whether Cellphone Passcodes Are Protected
NJLJ: ‘Private Enclave’? Supreme Court Deciding Whether Cellphone Passcodes Are Protected by Suzette Parmley (“The case ‘could cause the court to diverge on constitutional amendments’ and have a seminal impact, Justice Barry Albin said during the arguments at the Richard … Continue reading
NYTimes: You Are Now Remotely Controlled
NYTimes: You Are Now Remotely Controlled (“Surveillance capitalists control the science and the scientists, the secrets and the truth.”):
NYTimes: Jeff Bezos’ Phone Hack Should Terrify Everyone
NYTimes: Jeff Bezos’ Phone Hack Should Terrify Everyone by Charlie Warzel (“Those with the most to lose don’t always safeguard their privacy very well. You can do better.”)
ABAJ: Defendant challenges ‘classic dragnet search’ for Google cellphone data within robbery radius
ABAJ: Defendant challenges ‘classic dragnet search’ for Google cellphone data within robbery radius by Debra Cassens Weiss:
FISC: Govt admits material misstatements in FISA applications for Carter Page, and it is preparing a report for 1/28
The government admits material misstatements in FISA applications for Carter Page, and it is preparing a report for submission January 28, 2020). In re Page, No. 16-1182, 17-52, 17-375, 17-679 (Jan. 7, 2020, unclassified Jan. 23, 2020). See CNN: Government … Continue reading
N.D.Ala.: Def had no standing to complain of illegal “arrest” of a corporation
Defendant has no standing to complain of the alleged illegal arrest of a corporation, even if it could be. United States v. Cargill, 2020 U.S. Dist. LEXIS 9581 (N.D.Ala. Jan. 21, 2020). “All together, the Defendant’s resemblance to Jose Corpus, … Continue reading
D.D.C.: Telling person to “hold on a sec” was a seizure as to his perception
Telling defendant to “hold on a sec” was a seizure. That’s how the defendant perceived it. Just because he didn’t run away didn’t mean he didn’t think he was seized. United States v. Hood, 2020 U.S. Dist. LEXIS 9514 (D.D.C. … Continue reading
NC: Obtaining blood sample by court order without PC or even RS suppressed
Blood draw evidence should have been suppressed because the order obtaining it was based on no showing of probable cause or even reasonable suspicion. Second degree murder conviction reversed. State v. Scott, 2020 N.C. App. LEXIS 69 (Jan. 21, 2020):
Cal.5th (concurring): Are routine administrative searches with guns on hip and bulletproof vests always reasonable?
Officers showed up for an OSHA inspection armed and wearing bulletproof vests and insisted upon the inspection starting without giving the company representative a chance to even think about it. The concurring judge finds this excessive in a free society, … Continue reading
OH12: Not challenging reliability of drug dog not IAC without showing result would change
Defendant doesn’t show that the outcome would be different if defense counsel had challenged the certification and reliability of the drug dog. State v. Wash, 2020-Ohio-152, 2020 Ohio App. LEXIS 131 (12th Dist. Jan. 21, 2020). “Accordingly, the court finds … Continue reading
OH11: “Hand swabs” in SW for person fairly includes fingernail scrapings; no REP in clothing removed at ER by nurses
Defendant was brought to a hospital for alleged injuries. He was exceedingly drunk for a juvenile and covered in blood. He was cleaned up at the ER and no injuries found. The nurses there took his clothes. Police later seized … Continue reading
Reason: Kentucky Lawmaker Wants To Give Police the Power to Detain People Who Don’t Answer Their Questions
Reason: Kentucky Lawmaker Wants To Give Police the Power to Detain People Who Don’t Answer Their Questions by Scott Shakford (“It’s an attempt to bypass Fourth and Fifth Amendment protections by insisting it’s not an arrest.”)
CA6: Game officers had PC to arrest ptf for night hunting with lights despite ptf winning some counts at state trial and state abandoning last one on his promise not to do it anymore
Officers had probable cause to arrest plaintiff for shining deer at night when he was spotted from an airplane on patrol. He was arrested for hunting under the influence and at night. He ultimately got counts dismissed, one for his … Continue reading