Archives
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Recent Posts
- CA5: Deficient privilege log after records search was waiver
- E.D.Ky.: When court can’t tell the dog alerted, motion to suppress granted
- OH1: A malnourished child isn’t exigency for an infant
- E.D.Pa.: Mandamus doesn’t lie to unseal SW papers
- D.Me.: Looking around house when allegedly “freezing” it was an illegal search
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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)
ACLU on privacy
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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)
Website design by Wally Waller, Little Rock 
Monthly Archives: July 2023
SDT-U: Could San Diego Police Department’s smart streetlights program infringe upon privacy rights? [as in 500 pole cameras]
The San Diego Times-Union: Could San Diego Police Department’s smart streetlights program infringe upon privacy rights? By Lyndsay Winkley (“Experts say it’s hard to identify when surveillance technology encroaches on a person’s Fourth Amendment rights, but pervasiveness definitely plays a … Continue reading
CA6: Arrest paperwork delay here violated Riverside 48 hour rule
Officers’ apparent delays in processing paperwork on an arrest which resulted in plaintiff spending an extra two days in jail without any kind of probable cause finding violated clearly established law. Here, the prosecutor wouldn’t act without their paperwork. “It … Continue reading
CA6: In § 1983 case, exceptions to warrant requirement aren’t likely affirmative defenses to plead
Exceptions to the warrant requirement do not appear to be affirmative defenses required to be pled in a § 1983 case under F.R.C.P. 8(c) waived by not pleading in first response. Szappan v. Meder, 2023 U.S. App. LEXIS 19485 (6th … Continue reading
PA: Officers knocked before entry and defendant acknowledged their presence
Failure to comply with the knock and announce requirement could result in exclusion under state law. Here, however, the trial court’s findings of fact justified dispensing with the knock-and-announce requirement. Officers heard defendant acknowledge their presence, and then they entered … Continue reading
CA8: Pulling off a blanket during a stop on slight RS was unreasonable
Defendant got off a Greyhound bus in Omaha during a driver change. The officers just barely had reasonable suspicion to detain defendant, and pulling his blanket off amounted to a search. That enabled the officer to see he had a … Continue reading
CA3: The search exceeding the scope of a warrant justified suppression
The search exceeding the scope of a warrant justified suppression: “But here, the benefit of suppression is neither marginal nor nonexistent. The agents exceeded the scope of authority conferred by the warrant when they either ignored or disregarded the risk … Continue reading
W.D.Tenn.: Violation of police dept. vehicle chase policy doesn’t equate to a violation of the 4A
An alleged violation of department policy on police chases doesn’t equal a Fourth Amendment violation. United States v. Moore, 2023 U.S. Dist. LEXIS 130238 (W.D. Tenn. July 27, 2023). Speeding and erratic driving justified the stop, and alcohol was seen … Continue reading
W.D.Va.: Info on def’s cell phone provided nexus for SW of house
Information on defendant’s cell phone linking him and Trafficker A also linked his home to the transactions and that showed nexus. United States v. Johnson, 2023 U.S. Dist. LEXIS 130082 (W.D. Va. July 27, 2023).* The information about defendant’s drug … Continue reading
D.Nev.: Request of internet provider to preserve evidence under 18 U.S.C. § 2703(f) is not a seizure
“Here, the Court finds that Omegle and TextNow’s preservation of evidence in response to the Government’s request under 18 U.S.C. § 2703(f)—a provision of the Stored Communications Act—did not violate the Fourth Amendment for two reasons. First, because the preservation … Continue reading
NY3: Leaving one’s house to do a drug deal and returning is nexus to house
“Contrary to defendant’s contention, the CI’s basis of knowledge was not undermined by the fact that the CI did not actually enter the apartment during the controlled buys …. A sufficient nexus to the apartment was established by the continuous … Continue reading
OH8: Dog alert on a car permits search of containers in it
A dog alert on a car was probable cause for a search of it and containers, here a backpack. State v. Kumuhone, 2023-Ohio-2586, 2023 Ohio App. LEXIS 2554 (8th Dist. July 27, 2023). “The contemporaneous tip, the visual details that … Continue reading
N.D.N.Y.: Escapee from BOP halfway house had no REP in apt. where he was found
Defendant was an escapee from a BOP halfway house, and he had no reasonable expectation of privacy where he was found. Also, he was subject to a search condition at the halfway house, and that’s not avoided by escape. United … Continue reading
Reason: A SWAT Team Destroyed an Innocent Man’s Shop. Then the City Left Him With the Bill.
Reason: A SWAT Team Destroyed an Innocent Man’s Shop. Then the City Left Him With the Bill. by Billy Binion (“Pena didn’t fault the city for attempting to subdue an allegedly dangerous person. But he objected to what came next: … Continue reading
E.D.Tenn.: Suppression not remedy for violation of equal protection
Suppression of evidence is not the remedy for an equal protection violation, even if it were valid, which it’s not. United States v. Christie, 2023 U.S. Dist. LEXIS 129172 (E.D. Tenn. July 26, 2023). A fictitious license plate is reasonable … Continue reading
S.D.Ind.: Drone use that didn’t go over curtilage was reasonable
The use of a drone to surveil plaintiffs’ home from a distance in a child welfare case was not unreasonable. The drone didn’t fly over the house or curtilage, and the police were concerned plaintiffs had a “small arsenal” and … Continue reading
CA10: Civil remedy for violation of Posse Comitatus Act, not exclusion
The remedy for a violation of the Posse Comitatus Act is civil, not exclusion. United States v. King, 2023 U.S. App. LEXIS 19052 (10th Cir. July 25, 2023) (denying COA). “On the whole, the factors outlined in Chavez provide mixed … Continue reading
Cal.3: PC to search passenger compartment for gun didn’t extend to the trunk
Officers had probable cause to search defendant’s passenger compartment for a firearm. When the gun wasn’t found there, the officer searched the trunk, finding it. The probable cause, however, did not extend to the trunk. People v. Leal, 2023 Cal. … Continue reading
CA4: Not clearly established that VA DOC can’t drug test a Telecommunications Network Coordinator
Qualified immunity applies to the Virginia DOC directing a drug test of a Telecommunications Network Coordinator. “After VDOC fired Garrett for declining a random drug test, Garrett sued, alleging that VDOC employees violated his Fourth Amendment rights by applying VDOC’s … Continue reading
D.D.C.: SEC admin subpoena for law firm cyberattack was narrowed to only affected clients
Covington & Burling was the target of a cyberattack, and the SEC investigated. It wanted the names of all affected clients, but C&B resisted, seeking narrower disclosure. The law firm agreed that only certain affected clients should be disclosed, and … Continue reading
E.D.Wis.: Late disclosed information justified the late filing of the motion to suppress
Late disclosed information justified the late filing of the motion to suppress. But, it still loses on the merits. United States v. Love, 2023 U.S. Dist. LEXIS 126671 (E.D. Wis. July 24, 2023).* This stop was based on reasonable suspicion … Continue reading