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ABA Journal 's Blawg 100 (2015-2016)
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© 2003-17,
online since Feb. 24, 2003
WebPage Visits: real non-robot hits since 2010; approx. 20k posts since 2003~~~~~~~~~~~~~~~~~~~~~~~~~~
Fourth Amendment cases,
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Congressional Research Service:
--Electronic Communications Privacy Act (2012)
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--Outline of Federal Statutes Governing Wiretapping and Electronic Eavesdropping (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“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)
Category Archives: Probable cause
S.D.Tex.: Third Leon test essentially shores up PC here
The affidavit for the child pornography search warrant here was issued at least with a reasonable belief in probable cause under the third Leon test. [The court should have just found probable cause because it certainly looks like there is … Continue reading
D.Kan.: CP SW not stale [are they ever?]
The search warrant for child pornography was not stale, based on the officer’s experience. [Since no case has ever found staleness in child pornography cases, why don’t they just cut to the chase and take judicial notice?] United States v. … Continue reading
CA2: Correcting the alleged false statements in affidavit still leaves PC so officials have QI
Deleting the allegedly false information from the affidavit for search warrant leaving it as a “corrected” affidavit under Franks, there still was a fair probability for probable cause. That there might be other explanations doesn’t undermine probable cause. Therefore, defendants … Continue reading
S.D.Fla.: Def’s having keys and free access to girlfriend’s apt gives him standing, but the protective sweep was clearly justified
Defendant has standing to challenge the search of his girlfriend’s apartment because he has keys and stays there when he wants to without limitation. “Therefore, the Defendant argues that the Defendant has at least as much of a privacy interest … Continue reading
OH2: Somebody leaning in car window then leaving when police approach is not PC
Somebody leaning in the car window to talk to defendant then walking away as police approached is not probable cause to believe a drug deal just went down. Suppression motion should have been granted. State v. Ward, 2017-Ohio-8141, 2017 Ohio … Continue reading
NC: Make and model of a firearm isn’t required for PC as long as it’s described as similar
That a gun matched the description of defendant’s gun was still probable cause on this record. The police didn’t have to have the make and model of the gun to have probable cause. State v. Messer, 2017 N.C. App. LEXIS … Continue reading
CA6: Alleged defect in state arrest warrant was irrelevant under the 4A where there was PC
Defendant’s arrest under a purportedly defective Georgia arrest warrant was irrelevant under the Fourth Amendment because there was plenty of probable cause for it. Specifically, defendant contended that the officers needed an incident report or something that showed probable cause … Continue reading
TX14: Def’s gf’s private search of his cell phone finding CP wasn’t unreasonable search
Defendant’s girlfriend had free access to his cell phone because the password on the phone was shared with her and it was the same as the PIN on his debit card which she also used. She conducted a valid private … Continue reading
NPR: Supreme Court Case Asks: How Much Do Partygoers Need To Know About The Party House?
NPR: Supreme Court Case Asks: How Much Do Partygoers Need To Know About The Party House? by Nina Totenberg Supreme Court justices this week looked at whether police can arrest people who they mistakenly believe are trespassing.
TN: SW issuing magistrates have only district-wide jurisdiction and couldn’t issue SW here
By statute, magistrates issuing search warrants have only district-wide jurisdiction, and here the magistrate lacked authority to issue the search warrant at issue. The state did not show any exceptions. State v. Frazier, 2017 Tenn. Crim. App. LEXIS 861 (Sept. … Continue reading
