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ABA Journal Web 100, Best Law Blogs (2017); ABA Journal Blawg 100 (2015-16)
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© 2003-20,
online since Feb. 24, 2003
WebPage Visits: real non-robot hits since 2010; approx. 25k posts since 2003~~~~~~~~~~~~~~~~~~~~~~~~~~
Fourth Amendment cases,
citations, and linksLatest Slip Opinions:
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FDsys, many district courts, other federal courts
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State courts (and some USDC opinions)
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To search Search and Seizure on Lexis.com $Research Links:
Supreme Court:
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Solicitor General's site
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Briefs online (but no amicus briefs)
Oyez Project (NWU)
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General (many free):
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Lexis.com $
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F.R.Crim.P. 41
www.fd.org
Federal Law Enforcement Training Center Resources
FBI Domestic Investigations and Operations Guide (2008) (pdf)
DEA Agents Manual (2002) (download)
DOJ Computer Search Manual (2009) (pdf)
Stringrays (ACLU No. Cal.) (pdf)
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
Privacy Foundation
Electronic Frontier Foundation
NACDL’s Domestic Drone Information Center
Electronic Privacy Information Center
Criminal Appeal (post-conviction) (9th Cir.)
Section 1983 Blog"If it was easy, everybody would be doing it. It isn't, and they don't."
—Me“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"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!”
"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."
---Pepé Le Pew
—Johnson v. United States, 333 U.S. 10, 13-14 (1948)
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Category Archives: Issue preclusion
CA6: Handcuffing too tight overcame QI
Plaintiff stated a claim that overcame qualified immunity that she was handcuffed too tight causing injury. Ouza v. City of Dearborn Heights, 2020 U.S. App. LEXIS 24679 (6th Cir. Aug. 5, 2020).* 2255 petitioner’s Fourth Amendment claim is barred by … Continue reading
CA9: Nevada JP’s PC determination never finalized has no preclusive effect in § 1983 case
A preliminary determination of probable cause by a justice of the peace that is not appealed is not entitled to preclusive effect under state law. Therefore, plaintiff states a claim for relief for his alleged false arrest despite that. Scafidi … Continue reading
CA7: Factual mistake in state court opinion doesn’t justify habeas relief
A factual mistake in a state court’s decision on defendant’s Fourth Amendment claim for the inventory of his property still doesn’t merit habeas relief. Marling v. Littlejohn, 2020 U.S. App. LEXIS 21616 (7th Cir. July 13, 2020). Plaintiff’s claim for … Continue reading
E.D.Cal.: Question for Stone v. Powell is: does the state provide a mechanism for “full and fair litigation” of a 4A claim, not whether def took advantage of it
The question for Stone v. Powell is: does the state provide a mechanism for “full and fair litigation” of a Fourth Amendment claim, not whether defendant took advantage of it. Barrera v. Sherman, 2020 U.S. Dist. LEXIS 118199 (E.D. Cal. … Continue reading
NY4: Failure to complete inventory report of the search doesn’t void search
“Contrary to defendant’s contention, even assuming, arguendo, that the police officers failed to comply with the inventory provisions of CPL 690.50(5), we conclude that noncompliance with that subdivision ‘does not undermine the validity of the search warrant or the search’” … Continue reading
CA10: Unappealed suppression order from one district collateral estoppel on reindictment on same facts in a different district
Defendant was indicted for child pornography, and the district court suppressed. The government appealed but dismissed the appeal without filing a brief. In the district court it dismissed the indictment. Later, on the same evidence from the same search warrant, … Continue reading
CA10: Admission of CSLI evidence requires a witness for confrontation purposes
CSLI information obtained by warrant still requires a witness to explain them for confrontation purposes. State v. Lawson, 2020-Ohio-3004, 2020 Ohio App. LEXIS 1952 (10th Dist. May 19, 2020). Defense counsel wasn’t ineffective for not moving to suppress CSLI three … Continue reading
TN: DNA sample was subject to inevitable discovery where def was subjected to another one for a homicide two years later
Defense counsel wasn’t ineffective for not objecting to a DNA sample where defendant claimed it exceeded his consent. The post-conviction court found that it didn’t. Moreover, discovery was inevitable because another DNA sample was validly taken two years later as … Continue reading
Law.com: Analysis: Seventh and Ninth Circuits Decide Important ‘Heck’ Issues
Law.com: Analysis: Seventh and Ninth Circuits Decide Important ‘Heck’ Issues by Martin A. Schwartz (“The Supreme Court in ‘Heck’ held that a §1983 constitutional claim that ‘necessarily’ implies the invalidity of the plaintiff’s conviction is not ‘cognizable’ unless the conviction … Continue reading
CA7: Consenter had apparent authority; no signs she might not have actual authority
Based on all the evidence, the consenter had apparent authority to consent to the search of the house. While she’d supposedly moved out, she had a key and still had stuff there, and the officers had no suggestion that she … Continue reading
OH5: Trial judge signing SW wasn’t ground to recuse
The trial judge having signed a search warrant wasn’t grounds to recuse at trial. Defense counsel wasn’t ineffective for not raising it. The validity of the search wasn’t even an issue. State v. Ray, 2020-Ohio-1265, 2020 Ohio App. LEXIS 1197 … Continue reading
D.Idaho: Faint smell of MJ and “excessive nervousness” not RS
Faint smell of marijuana and nervousness was not reasonable suspicion. The court also doesn’t find the travel plans at all suspicious. United States v. Lee, 2020 U.S. Dist. LEXIS 33091 (D. Idaho Feb. 25, 2020). Plaintiff’s nolo plea barred his … Continue reading
IA: Navigable waters belong to the state, no matter who owns the bottom land; stop was based on RS
Defendant claims his stop for boating under the influence wasn’t valid under the Fourth Amendment and Iowa Constitution because the body of water sat over private lands. Navigable waters belong to the state, and the officer had reasonable suspicion to … Continue reading
CA7: Trying and losing a 4A claim in state court precludes § 1983 case over same issue
Plaintiff was arrested for drunk driving and convicted in local court after raising his Fourth Amendment claim there. He sued everybody involved in his arrest. The court finds him precluded from relitigating it in federal court under § 1983. Novotny … Continue reading
