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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© 2003-21,
online since Feb. 24, 2003
WebPage Visits: real non-robot hits since 2010; approx. about 30,000 posts since 2003~~~~~~~~~~~~~~~~~~~~~~~~~~
Fourth Amendment cases,
citations, and linksLatest Slip Opinions:
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To search Search and Seizure on Lexis.com $Research Links:
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Briefs online (but no amicus briefs)
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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
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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
S.D.Ala.: Younger doctrine precludes ptf’s 4A claim over pending state criminal case
Plaintiff’s false arrest claim claiming, inter alia, a Fourth Amendment violation, two years into his pending state criminal case was barred by the Younger doctrine. Sweeting v. Garrett, 2021 U.S. Dist. LEXIS 66705 (S.D. Ala. Apr. 6, 2021). Under Washington’s … Continue reading
W.D.Mo.: Pushing down the ptf causing injury was a seizure
The officer pushing down the plaintiff causing injury was a seizure. “A reasonable officer in Sasse’s position would not have thought it appropriate to shove Martinez so forcefully without first at least requesting that Martinez step back or step away … Continue reading
CA5: Ptf’s § 1983 case over his search implies invalidity of the conviction, and it’s barred by Heck
Plaintiff’s § 1983 case against his search and seizure implies invalidity of the conviction, and it’s barred by Heck. VanBuren v. Walker, 2021 U.S. App. LEXIS 9115 (5th Cir. Mar. 29, 2021). “As to Hoffert’s remaining claim for violation of … Continue reading
DE: Defense counsel’s letter to client why 4A claim would fail shows def would never prevail
“Turning to Stokes’ claim that trial counsel was ineffective for failing to investigate his case and make various arguments on his behalf, the record refutes this claim. First, it is clear that trial counsel carefully considered filing a motion to … Continue reading
DE: Trash container at street was not on curtilage
Defendant’s trash container at the foot of his driveway awaiting pickup was not on the curtilage. Moreover, he had no reasonable expectation of privacy in it sitting there. State v. Peart, 2021 Del. Super. LEXIS 243 (Mar. 25, 2021). Rooker-Feldman … Continue reading
W.D.La.: Govt showed justification for protective sweep of person then car
“The firearms and drugs were found during the protective sweep of the passenger area of the vehicle. The initial stop and pat-down of Defendant were justified under Terry, and the subsequent protective sweep of the car for weapons was a … Continue reading
E.D.Wis.: Ptf’s civil case over his criminal case might run afoul of Heck so it’s ordered stayed
It appears that plaintiff’s complaint over his criminal case would likely be barred under Heck if he’s convicted. Therefore, it is administratively closed and stayed. McClain v. Morales, 2021 U.S. Dist. LEXIS 53173 (E.D. Wis. Mar. 22, 2021). Defendant’s motion … Continue reading
MI: Inventory policy doesn’t have to be written if it’s standardized
A written search inventory policy isn’t constitutionally required. “We hold that, in order to establish that an inventory search is reasonable, the prosecution must establish that an inventory-search policy existed, all police officers were required to follow the policy, the … Continue reading
D.Me.: Even a perjury claim about state court search testimony doesn’t get over Stone bar
2254 petitioner’s claim that the search and seizure testimony in state court was based on perjury still doesn’t get him over Stone v. Powell. Wilson v. Maine, 2021 U.S. Dist. LEXIS 44260 (D. Me. Mar. 10, 2021). A § 1983 … Continue reading
CA5: Police accidentally shooting a hostage isn’t an intentional seizure
“Here, the only plausible reading of the allegations is that Doe accidentally shot Ulises while trying to help him by ending the hostage situation. Such accidental conduct does not result in a Fourth Amendment seizure. See Brower, 489 U.S. at … Continue reading
CA10: Successor habeas denied on claim state judges denied 4A claims because they were racist
2254 petitioner’s claim the state courts failed to adequately consider his Fourth Amendment claim because they were racist was still barred as a successive habeas. White v. Crow, 2021 U.S. App. LEXIS 6769 (10th Cir. Mar. 9, 2021):
E.D.Tex.: 4A arrest claim also subject to Stone bar
Defendant’s 2254 claim that his arrest was without probable cause on mistaken identity is foreclosed by Stone v. Powell the same as Fourth Amendment search claims. “The opportunity, regardless of whether it is acted upon at the state level, is … Continue reading
E.D.N.Y.: Def gets access to SW materials, but govt can redact informant’s info
The target of a search warrant long ago served is entitled to unsealing the affidavit, but the government can redact the affiant’s name and identifying information. United States v. Storage Room Numbers, 2021 U.S. Dist. LEXIS 35977 (E.D. N.Y. Feb. … Continue reading
CA4: Suit by convict over arrest without PC doesn’t mention conviction and isn’t barred by Heck
Plaintiff’s complaint that his arrest was without probable cause doesn’t necessarily implicate his guilt or innocence, and it isn’t barred by Heck. He doesn’t even mention the conviction. Dizzley v. Garrett, 2021 U.S. App. LEXIS 4314 (4th Cir. Feb. 16, … Continue reading
D.D.C.: Failure to timely make return of papers under Rule 41 not a 4A violation
Failure to make the return of the warrant to the clerk along with the inventory in violation of Rule 41 requires more than just negligence in failing to do it on time. Where’s the prejudice? The court will not speculate … Continue reading
M.D.Fla.: State court’s findings on PC [not appealed] not binding on federal court
A state court’s findings of lack of probable cause to proceed with some charges against the defendant isn’t binding on federal courts. “Based on the evidence presented at the hearing, including the 911 calls, bodycam footage, and the credible and … Continue reading
CA2: Later search of bag was inevitable discovery overcoming objection to first search
Even if the search of defendant’s bag was invalid, he was taken to the police station and his bag was validly searched again an inventory. United States v. Ruffin, 2021 U.S. App. LEXIS 3351 (2d Cir. Feb. 8, 2021). Defendant’s … Continue reading
E.D.Tenn.: Guilty plea in state court precludes claim that arrest lacked PC
Having pled guilty in state court, plaintiff can’t complain that the arrest leading to the plea lacked probable cause. Moser v. Davis, 2021 U.S. Dist. LEXIS 13308 (E.D. Tenn. Jan. 25, 2021). Petitioner had a “full and fair” opportunity to … Continue reading
TX11: No spousal privilege in recorded jail calls
Defendant’s jail calls to his wife were not privileged because he knew from the recording at the start of the call that it was being recorded. Newman v. State, 2021 Tex. App. LEXIS 293 (Tex. App. – Eastland Jan. 14, … Continue reading
