Archives
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Recent Posts
- M.D.Pa.: Def was neither shipper nor recipient of USPS parcel, so he had no standing in it
- WI: Obtaining def’s DNA by ruse wasn’t an illegal search
- WaPo: Apple, Google and Venmo fight new U.S. plan to monitor payment apps
- CA4: Tracking order using cell site simulator with PC was reasonable
- CADC: When searching a cell phone and officers find it belonged to someone else, a new SW isn’t required; SWs are directed at things, places, and people and owner doesn’t matter for PC
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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: December 2022
TX14: PC for a cell phone requires more than a bare conclusion one was present or involved; no PC here
“A probable cause affidavit supporting a cell phone search must contain evidence of the requisite nexus with more than mere conclusory allegations. For example, the Court of Criminal Appeals recently held that generic, boilerplate language about cell phone use among … Continue reading
IN: Mistake of law to an illegal search or seizure applies to the scope of the law, not whether it even exists
The mistake of law “defense” to an illegal search or seizure applies to the scope of the law, not whether it even exists. Here, it didn’t. White v. State, 2022 Ind. App. LEXIS 390 (Dec. 8, 2022). The specific characteristics … Continue reading
OH: Opening car door was to secure uncooperative def, not search; plain view valid
Opening the car door was not for the purpose of searching; it was to secure the uncooperative defendant. During the interaction, evidence in plain view was seen and the officer then could enter the car to secure it. State v. … Continue reading
D.Alaska: On reconsideration, govt revealed officer misconduct, and court finds him not credible
After defendant’s motion to suppress was denied, the government alerted the court and defense to an internal investigation of the state trooper involved just concluded where 43 instances of violation of policy and procedure were documented. The search here turned … Continue reading
NY2: SW papers provided to GJ aren’t discoverable because of GJ secrecy
Defendant sought search warrant materials presented to the grand jury. Denied because of grand jury secrecy. Sculti v. Finley, 2022 NY Slip Op 06950, 2022 N.Y. App. Div. LEXIS 6820 (2d Dept. Dec. 7, 2022). Defendant had no standing in … Continue reading
N.D.Fla.: SW used to get caller information on Google Voice call
Here, the government got a search warrant for information from Google over who placed a Google voice call. United States v. Alford, 2022 U.S. Dist. LEXIS 219552 (N.D. Fla. Nov. 8, 2022),* adopted, CoA denied, 2022 U.S. Dist. LEXIS 218090 … Continue reading
Cal.3d: Parole search of glove compartment of car where parolee was backseat passenger was unreasonable
The parole search of a car’s glove compartment because of a parolee backseat passenger was unreasonable. Because the glove compartment was locked, it wasn’t possible for the key in the ignition to be used to unlock it while the vehicle … Continue reading
W.D.Pa.: All Writs Act proceeding for tracking order is a judicial proceeding for common law right of access to records
An All Writs Act proceeding by the government to track someone in real time back in 2020 is a judicial record subject to the common law right of disclosure of court records. In re Forbes Media LLC, 2022 U.S. Dist. … Continue reading
CA4: Govt is not responsible when a subpoenaed party turns over more than was sought
The government is not responsible when a subpoenaed party turns over more than was sought. United States v. Taylor, 2022 U.S. App. LEXIS 33418 (4th Cir. Dec. 5, 2022). Officers executing a search warrant at defendant’s house repeatedly made it … Continue reading
Grid News: Can police use facial recognition as probable cause? Probably not, but some are doing it anyway
Grid News: Can police use facial recognition as probable cause? Probably not, but some are doing it anyway (“A new report from the Georgetown Center for Privacy Technology argues that facial recognition has serious flaws that make it unreliable for … Continue reading
OH1: Failure to follow probation search statute doesn’t require exclusion
Defendant’s argument that the probation search statute wasn’t followed doesn’t require exclusion. That’s for constitutional violations. State v. Clardy, 2022-Ohio-4300, 2022 Ohio App. LEXIS 4070 (1st Dist. Dec. 2, 2022); State v. Kellett, 2022-Ohio-4340, 2022 Ohio App. LEXIS 4088 (5th … Continue reading
MI: Automobile repair business is pervasively regulated
The trial court erred in suppressing the search of defendant’s automobile repair business which was a pervasively regulated business. The search was during the work week during regular hours and was for evidence of compliance with the Motor Vehicle Service … Continue reading
CA8: No standing to challenge GPS already installed in CS’s car he borrowed
Defendant had no standing to contest installation of a GPS by the CS in the vehicle he loaned to defendant. Jones specifically recognized this. United States v. Dewilfond, 2022 U.S. App. LEXIS 33273 (8th Cir. Dec. 2, 2022). Defendant was … Continue reading
E.D.Mich.: Parole search can occur when parolee not home
Defendant was on state parole living with his girlfriend, also a defendant. They were out and her mother was their babysitter in the home. Parole came by for a compliance check. The mother let them in. First, the search was … Continue reading
IN: dog sniff outside a hotel room door was reasonable under the state constitution
A dog sniff outside a hotel room door was reasonable under the state constitution. (And, while other information was illegally gathered, this was enough for the warrant.) Crabtree v. State, 2022 Ind. App. LEXIS 385 (Dec. 1, 2022). Excessive force … Continue reading
E.D.Tenn.: There is no standing in CSLI of another’s phone
No standing to challenge acquiring the CSLI of another’s cell phone. United States v. Lopez, 2022 U.S. Dist. LEXIS 215709 (E.D. Tenn. Oct. 24, 2022),* adopted, 2022 U.S. Dist. LEXIS 214604 (E.D. Tenn. Nov. 29, 2022).* Defendant’s guilty plea waived … Continue reading
CA6: Third-party standing in § 1983 fails
Plaintiff is the employer of people detained at a job site. Because their individual claims were small, the company sued for them. The third party standing claim under § 1983 fails, and the employer also admitted that the employees likely … Continue reading
Reason: Geofencing Warrants Are a Threat to Privacy
Reason: Geofencing Warrants Are a Threat to Privacy by Bonnie Kristian: