Archives
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Recent Posts
- 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
- DC: Accepting a law license is consent to trust account subpoenas
- AR: RS def rented a hotel room was sufficient for search waiver; PC not required
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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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"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: June 2022
CA7: Inevitable impoundment of car mooted claim dog jumped in car
Defendant’s car was inevitably going to be searched after impoundment, so the question of the drug dog jumping into the car doesn’t have to be decided. United States v. Overton, 2022 U.S. App. LEXIS 16158 (7th Cir. June 13, 2022). … Continue reading
OH3: In flyover case, def carries burden of showing a “search” and violation of FAA rules
In a helicopter flyover case, defendant carried the burden of showing that the police conducted a “search” that violated his reasonable expectation of privacy by flying too low in violation of FAA rules. He didn’t here; remanded. State v. Jordan, … Continue reading
TN follows Kimmelman for 4A IAC claims
Tennessee follows Kimmelman: “Upon our review of the record and applicable law, we conclude that to establish prejudice with this type of claim, the petitioner must prove that ‘his Fourth Amendment claim is meritorious and that there is a reasonable … Continue reading
EFF: How the Federal Government Buys Our Cell Phone Location Data
EFF: How the Federal Government Buys Our Cell Phone Location Data by Bennett Cyphers:
LawFare: The Impotence of the Fourth Amendment in a Post-Roe World
LawFare Blog: The Impotence of the Fourth Amendment in a Post-Roe World by Jolynn Bellinger & Stephanie Pell:
ABA Journal: Are driverless car searches constitutional?
ABA Journal: Are driverless car searches constitutional? by Adam Banner:
Gizmodo: New Research Suggests Always-On Bluetooth Could Be Used to Track Your Phone
Gizmodo: New Research Suggests Always-On Bluetooth Could Be Used to Track Your Phone by Kyle Barr (“With tracking devices like Apple AirTags used to stalk and harass, this new research proves there will always be novel ways for technology to … Continue reading
NE: “Probable cause may be based on commonsense conclusions about human behavior.”
There was probable cause for this search warrant for defendant’s cell phone found where a window peeper dropped it in flight from being seen at the window. The warrant was particular, and video of a sleeping woman being sexually abused … Continue reading
S.D.N.Y.: No REP in car obtained by fraud
There is no reasonable expectation of privacy in a car obtained by identify theft. United States v. Ilori, 2022 U.S. Dist. LEXIS 104338 (S.D.N.Y. June 10, 2022):
E.D.Pa.: 4A doesn’t even require SW be signed if PC was found by issuing magistrate; signing in wrong place doesn’t matter
The issuing magistrate’s failure to sign the warrant in the appropriate place is not a Fourth Amendment violation. The Fourth Amendment does not even require the search warrant be signed by the issuing magistrate as long as probable cause was … Continue reading
IA: Ex-wife’s false claims of sex abuse of children was still PC for state action
Plaintiff sued the State of Iowa over a DHS sex abuse investigation that ordered him out of the house, but was later proved unfounded. It was discovered that his ex-wife’s claim was manufactured to get him out of the house. … Continue reading
E.D.Mo.: Cell phone passcode was provided by consent; alternatively, inevitable discovery applies
Defendant consented to providing his passcode to his cell phone. Even if not, it was admissible because of inevitable discovery. United States v. Morales, 2022 U.S. Dist. LEXIS 104053 (E.D.Mo. June 10, 2022).* “Defendant’s contention that his right to due … Continue reading
USA Today: Online data, medical records could be used to put women in jail under new abortion laws
USA Today: Online data, medical records could be used to put women in jail under new abortion laws by Tami Abdollah (“Period tracking apps, tele-health appointments, mail-in pharmacy requests and other data could be used as evidence in criminal cases … Continue reading
CA9: Arrest on 7 year old PV warrant was 4A reasonable; state law violation not relevant to reasonableness inquiry
Plaintiff’s arrest on a parole retake warrant not executed for seven years was still reasonable on the totality. “Even if Cornel’s arrest violated state law, it was not necessarily a violation of her Fourth Amendment rights. The Supreme Court has … Continue reading
Bloomberg Tax: Congress’ Crypto Reporting Rules Draw Constitutional Challenge
Bloomberg Tax: Congress’ Crypto Reporting Rules Draw Constitutional Challenge (June 11, 2022) COURT: E.D. Ky.DOCKET: No. 5:22-cv-00149 (Bloomberg Law subscription)JUDGE: Karen K. Caldwell (Bloomberg Law subscription)
NY Bronx: REP in one’s apartment building mailbox
Defendant had a reasonable expectation of privacy in his mailbox in an apartment building from unreasonable searches. A search warrant was sought through the Bronx DA, but they were short staffed and recommended the officers get landlord consent. That was … Continue reading
Law & Crime: Federal Judge Won’t Let Prosecutors Use Digital Cameras Seized from Accused U.S. Capitol Rioter Seen Boasting About ‘Fighting Cops’
Law & Crime: Federal Judge Won’t Let Prosecutors Use Digital Cameras Seized from Accused U.S. Capitol Rioter Seen Boasting About ‘Fighting Cops’ by Adam Klasfeld:
But this: GoPro camera evidence admitted
NBC News: Jan. 6 rioter sentenced after his GoPro showed him on front line rushing police by Ryan J. Reilly (via AOL). Our electronics rat us out.
PA: State bears initial burden of showing lack of REP that def must meet
In Pennsylvania, the state has to attempt to show a lack of reasonable expectation of privacy before it can argue a lack of standing. Here, it acquiesced in standing until after it lost the suppression argument, and that’s too late. … Continue reading
WA: A detainee’s racial and ethnic factors are a part of “all the circumstances” in determining a seizure under state constitution
Under the state constitution, whether a person is “seized” must consider the person’s racial and ethnic factors that influence their perceptions. State v. Sum, 2022 Wash. LEXIS 317 (June 9, 2022):