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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 / 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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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
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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 still learn something new every day.”
—Pete Townshend, The Who 50th Anniversary Tour, "The Who Live at Hyde Park" (Showtime 2015)"I can't talk about my singing. I'm inside it. How can you describe something you're inside of?"
—Janis Joplin"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: Ineffective assistance
CA8: Def retreating from a threshold arrest creates exigency
Defendant came to the doorway of his camper to be arrested, but he “retreated” and turned to go back inside with the officer still holding on to him. A look for a gun, finding one, was reasonable under Santana. United … Continue reading
D.N.M.: “An attorney’s choice in advancing one theory over another at a suppression hearing is often a strategic decision.”
“An attorney’s choice in advancing one theory over another at a suppression hearing is often a strategic decision.” United States v. Gutierrez, 2015 U.S. Dist. LEXIS 188570 (D.N.M. January 27, 2015). Defendant couldn’t claim ineffective assistance from a 2004 traffic … Continue reading
IA: Def plead guilty and later overruling of case law suggested the stop was unreasonable; no IAC claim on direct appeal
An LPN check showed the 77 year old owner of the car had an expired DL. When the officer encountered the driver, it was obviously not the owner because of age. It was the owner’s daughter. The officer shortly determined … Continue reading
PA: A def’s “admission transmitted through an informant is only as reliable as its conduit is trustworthy”
“[A]n admission per se is inherently reliable evidence” sufficient to establish probable cause to arrest, but holding that “an admission transmitted through an informant is only as reliable as its conduit is trustworthy.” Commonwealth v. Stokes, 480 Pa. 38, 389 … Continue reading
D.Mont.: Possession of a camera phone was violation of release conditions and justified PO search
Defendant had a release condition to stay away from children, but he babysat two and he let them use his cell phone connected to his computer. This was reasonable suspicion for a search of the cell phone and computer for … Continue reading
M.D.La.: A couple of pills in the car not easily identifiable as controlled substances didn’t justify a search
Defendant’s frisk was justified by reasonable suspicion. The search of his person, however, was not justified: Some pills in the car that weren’t easily identified as controlled substances does not mean that defendant was committing a crime. United States v. … Continue reading
IA: Where IAC claims based on persuading for overruling of settled law, def counsel hardly ineffective
Defendant’s argument on post-conviction that defense counsel should have argued for overruling of state authority on the search incident and automobile exception doctrines because of subtle changes in the law isn’t grounds for post-conviction. All that shows is that the … Continue reading
C.D.Ill.: Long term borrower of car has standing
One who borrows a car for a long time has standing. “And the Court is persuaded that society is prepared to accept as reasonable a person’s subjective expectation of privacy in a car borrowed for months on end from a … Continue reading
