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- E.D.Ky.: When court can’t tell the dog alerted, motion to suppress granted
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- D.Me.: Looking around house when allegedly “freezing” it was an illegal search
- 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
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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,
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)
--Federal Laws Relating to Cybersecurity: Discussion of Proposed Revisions (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: October 2021
LA4: SDT for tort ptf’s cell phone records was unreasonable and disproportionate
A subpoena duces tecum in a civil case for a plaintiff’s cell phone records was quashed and affirmed on appeal. Because of the substantial reasonable expectation of privacy in phone records, this was not proportionate to the case or the … Continue reading
NH: Enclosed porch is part of the house, not just part of curtilage
Defendant’s enclosed porch, which also was a living space, was part of the house and not just curtilage. Police entry was unreasonable. The fact there was another solid door to the main house isn’t determinative. There was no implied right … Continue reading
OH5: Def’s consent after being told drug dog was coming for her car wasn’t voluntary
The trial court held defendant’s consent was involuntary. She was asked for consent and told that a drug dog was coming so she might as well give it up. The conclusion is supported by the evidence and isn’t clearly erroneous. … Continue reading
NY3: Tossing backpack from one’s window into the window of the abandoned house next door to avoid seizure is a waiver of REP
When the police came to his house, defendant threw a backpack with a sawed-off rifle from his second floor window into a window of the house next door. He claimed that house was his uncle’s, but it was unsecured and … Continue reading
NYT: Pulled Over: The Demand for Money Behind Many Police Traffic Stops
NYT: Pulled Over: The Demand for Money Behind Many Police Traffic Stops by Mike McIntire and Michael H. Keller (“Busted taillights, missing plates, tinted windows: Across the U.S., ticket revenue funds towns — and the police responsible for finding violations.”):
NYT: Pulled Over: Why Many Police Traffic Stops Turn Deadly
NYT: Pulled Over: Why Many Police Traffic Stops Turn Deadly by David D. Kirkpatrick, Steve Eder, Kim Barker and Julie Tate (“Officers, trained to presume danger, have reacted with outsize aggression. For hundreds of unarmed drivers, the consequences have been … Continue reading
TX1: Commercial truck driver had standing to challenge seizure of cell phone from truck after his arrest
Defendant retained a reasonable expectation of privacy in his cell phone that was left in the semi he was driving for a commercial carrier when he was arrested. The owner of the truck retrieved the phone and sent it to … Continue reading
N.D.Ohio: Where there was no nexus and whether GFE should apply was a really close question, govt essentially gets the benefit of the doubt
“For the reasons that follow, the Court DENIES Defendant Eben Anderson’s motion to suppress. With respect to Defendant Anthony Anderson, the affidavit supporting the warrant lacks probable cause justifying the search because there is no nexus between the phones and … Continue reading
E.D.N.Y.: Handing over DL on request for police look wasn’t a seizure
Defendant was asked by the police for his ID. He gave it over and they noted it and gave it back. This was not a seizure. United States v. Stephenson, 2021 U.S. Dist. LEXIS 206467 (E.D.N.Y. Oct. 26, 2021).* Defendant’s … Continue reading
W.D.N.C.: Using a key to open a lockbox named in a SW rather than breaking it open is hardly unreasonable
Using defendant’s key to unlock a lockbox within the terms of the search warrant was not unreasonable. United States v. Frady, 2021 U.S. Dist. LEXIS 205784 (W.D.N.C. Oct. 26, 2021).* [Does he really expect that breaking into it is the … Continue reading
N.D.Ill.: No REP in automatic license plate reader records in state database
The FBI querying the state automatic license plate reader database to connect a car to two bank robberies was not an unreasonable search. There is no reasonable expectation of privacy in the information. United States v. Brown, 2021 U.S. Dist. … Continue reading
CA10: Exclusionary rule doesn’t apply in § 1983 cases
“Plaintiffs maintain that, because Salt Lake City Police violated the Fourth Amendment by unconstitutionally searching and seizing Jerrail Taylor and Adam Thayne, their statements should be excluded in this 42 U.S.C. § 1983 lawsuit. They advance this argument despite the … Continue reading
CA9: Heck claims should be dismissed without prejudice
Heck claims should be dismissed without prejudice in case the plaintiff can invalidate the conviction. Lund v. California, 2021 U.S. App. LEXIS 32096 (9th Cir. Oct. 26, 2021). The case has a helpful explanation of Heck:
ID: Officer taking DL and handing it to another officer to check was a seizure requiring RS; anonymous CI was not corroborated
Reasonable suspicion was required when the officer retained defendant’s driver’s license by taking it, leaving her presence, and giving it to another officer to run a license check. Defendant was thus detained because a reasonable person in her position would … Continue reading
N.D.N.Y.: Def’s additional exculpatory facts don’t undermine PC
There was plenty of probable cause for defendant’s arrest in his house based on statements and what the police learned in their child pornography investigation. “On top of that, the images already recovered from defendant’s devices were also more than … Continue reading
ABAJ: Chemerinsky: SCOTUS continues to hold the line on qualified immunity
ABAJ: Chemerinsky: SCOTUS continues to hold the line on qualified immunity (“Two unanimous U.S. Supreme Court decisions on Oct. 18 show the justices are continuing to broadly interpret qualified immunity to limit suits against government officials, especially police officers. Perhaps … Continue reading
Cato: Why Don’t Americans Have Stronger Financial Privacy Rights?
Cato: Why Don’t Americans Have Stronger Financial Privacy Rights? by Nicholas Anthony (“The announcement that the Biden administration proposed a $600 (now $10,000) threshold for bank account surveillance has left many people on social media wondering how such a proposal … Continue reading
CA11: Bag dropped to feet when def arrested couldn’t be searched incident to arrest; no safety concern
Officers accosted defendant to arrest him, and he dropped a paper bag. It could not seriously be argued that the bag contained a weapon. Moreover, the government did not argue abandonment. The district court erred in not granting the motion … Continue reading
N.D.Ga.: No right to pre-execution litigation of an OSHA administrative SW
There is no right to a pre-enforcement motion to quash an OSHA administrative warrant, despite the fact the whole process occurs quickly. The company has a post-execution process to remedy alleged violations. United States v. Foundation Foods Group, 2021 U.S. … Continue reading
Army: Loaning one’s phone to another without express limitations is a waiver of REP
The military judge abused his discretion in concluding that defendant did not essentially waive all his reasonable expectation of privacy in his cell phone by loaning it to another person, including the passcode to open it. “Understandings” aren’t enough; express … Continue reading