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- CA6: Impeaching def’s trial testimony about the search of his property using his proffer agreement was prejudicial, but harmless
- D.S.D.: Tribal officers governed by 4A and Indian Civil Rights Act
- CA9: Knock-and-announce failure doesn’t lead to suppression
- D.Minn.: Rehashing 4A argument to USMJ isn’t a proper objection to the R&R
- OH5: Drug dog officer’s touching car to redirect dog wasn’t a 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 -
© 2003-25,
online since Feb. 24, 2003 Approx. 500,000 visits (non-robot) since 2012 Approx. 47,000 posts since 2003 (30,000+ on WordPress as of 12/31/24) -
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Fourth Amendment cases,
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--Electronic Communications Privacy Act (2012)
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"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)
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Category Archives: FISA
E.D.N.Y.: Sec. 702 FISA searches require a warrant for U.S. persons
Sec. 702 FISA searches require a warrant for U.S. persons. United States v. Hasbajrami, 2024 U.S. Dist. LEXIS 238018 (E.D.N.Y. Dec. 2, 2024), filed with CISO and unsealed Jan. 21, 2025), on remand from United States v. Hasbajrami, 945 F.3d … Continue reading
D.Minn.: While def was a passenger in a van, it was transporting his stuff, so he had standing
Defendant was a passenger in a van owned by a family member and transporting his stuff. He had standing to challenge the stop and detention. The stop was admittedly valid, and the extension of 15 minutes was based on reasonable … Continue reading
Just Security: Warrantless “Defensive” Searches of FISA Section 702 Data Violate the Fourth Amendment
Just Security: Warrantless “Defensive” Searches of FISA Section 702 Data Violate the Fourth Amendment by Noah Chauvin:
FISA was extended for two years shortly after it expired at midnight
FISA was extended for two years shortly after it expired at midnight. See NYTimes: Senate Passes Two-Year Extension of Surveillance Law Just After It Expired – The New York Times (nytimes.com)
CA9: Officer stopping to check on an already stopped motorcycle wasn’t a seizure
Defendant’s motorcycle was already stopped on the side of the road. The officer pulling up to check on him wasn’t a seizure. United States v. Melgoza, 2024 U.S. App. LEXIS 8384 (9th Cir. Apr. 8, 2024). FISA warrants have a … Continue reading
Reason: Congress Renews Warrantless Digital Spying Program until April
Reason: Congress Renews Warrantless Digital Spying Program as Part of $886 Billion Spending Bill (“Section 702 will continue until April, when Congress will have another shot at seriously reforming a program that desperately needs it.”)
NYT: Talks on Surveillance Law Simmer as Its Expiration Date Looms
NYT: Talks on Surveillance Law Simmer as Its Expiration Date Looms by Charlie Savage (“Negotiations in Congress over a warrantless surveillance law are intensifying as it nears its expiration date. The debate has come during what national security officials say … Continue reading
WaPo: This FISA provision goes beyond terrorism. It’s vital to beating the opioid crisis.
WaPo: This FISA provision goes beyond terrorism. It’s vital to beating the opioid crisis. by Rahul Gupta (“The U.S. government’s bedrock authority for staying ahead of international threats is about to expire. As the White House director of national drug … Continue reading
WaPo: U.S. warrant requirement for surveillance program could hamper cyber cases, FBI official warns
WaPo: U.S. warrant requirement for surveillance program could hamper cyber cases, FBI official warns (“A top FBI official said Wednesday that a warrant requirement being floated for a controversial expiring surveillance program would be a big impediment to cyber investigations. … Continue reading
TechStory: FBI searched data of millions of Americans without warrants
TechStory: FBI searched data of millions of Americans without warrants by Disha Mitra (“These specific ‘queries’ were reportedly made somewhere between December 2020 and November 2021 by the FBI personnel. Apparently, they were looking for indications of threats and terrorists … Continue reading
ABA: An Unclassified Look at the Foreign Intelligence Surveillance Courts
ABA: An Unclassified Look at the Foreign Intelligence Surveillance Courts by Hon. Richard C. Tallman and Tania M. Culbertson, ABA Litigation, vol. 48, No. 2 (Winter 2022) (“They have recently become more transparent, but practicing before these specialty courts presents … Continue reading
CA10 explains nondomestic FISA surveillance in easy detail
For a detailed explanation of nondomestic FISA activities and phone call surveillance, see United States v. Muhtorov, 2021 U.S. App. LEXIS 36170 (10th Cir. Dec. 8, 2021) (No warrant or court order is required to surveil foreign persons’ conversations outside … Continue reading
techdirt: FISA Court Says FBI May Be Abusing Surveillance Powers; Will Continue To Allow It To Abuse Surveillance Powers
techdirt: FISA Court Says FBI May Be Abusing Surveillance Powers; Will Continue To Allow It To Abuse Surveillance Powers by Tim Cushing (“Reform efforts following the Snowden leaks led to some minor improvements at the FISA Court. The USA Freedom … Continue reading
Reason: Did the Ninth Circuit Create a New Fourth Amendment Notice Requirement for Surveillance Practices?
Reason: Did the Ninth Circuit Create a New Fourth Amendment Notice Requirement for Surveillance Practices? by Orin S. Kerr (“An overlooked part of United States v. Moalin could have a major impact on surveillance law.”)
CA9: Bulk data collection under FISA violates 4A and defs were entitled to notice of it; no exclusion, however
Bulk data collection under FISA violated the Fourth Amendment. A criminal defendant is entitled to notice of FISA collection. However, exclusion not applied in this case because defendants weren’t prejudiced. United States v. Moalin, 2020 U.S. App. LEXIS 28119 (9th … Continue reading
NYT: House to Vote on Limiting FBI Power to Collect Americans’ Internet Data NYTimes: House to Vote on Limiting F.B.I. Power to Collect Americans’ Internet Data by Charlie Savage (“Lawmakers compromised on an ambiguously worded amendment that narrows a failed … Continue reading
NYTimes: How National Security Surveillance Nabs More Than Spies
NYTimes: How National Security Surveillance Nabs More Than Spies (“The case against Nassif Sami Daher and Kamel Mohammad Rammal, two Michigan men accused of food stamp fraud, hardly seemed exceptional. But the tool that agents used to investigate them was … Continue reading
NYTimes: Court Bans Agents Who Botched Carter Page Surveillance From Seeking Wiretaps
NYTimes: Court Bans Agents Who Botched Carter Page Surveillance From Seeking Wiretaps by Charlie Savage (“An opinion and ruling by the Foreign Intelligence Surveillance Court also accepts a series of reforms the F.B.I. said it would make following a damning … Continue reading
techdirt: FBI And DOJ Personnel Confirm Agents Frequently Fudge Facts When Seeking FISA Warrants
techdirt: FBI And DOJ Personnel Confirm Agents Frequently Fudge Facts When Seeking FISA Warrants by Tim Cushing:
FISC: Govt admits material misstatements in FISA applications for Carter Page, and it is preparing a report for 1/28
The government admits material misstatements in FISA applications for Carter Page, and it is preparing a report for submission January 28, 2020). In re Page, No. 16-1182, 17-52, 17-375, 17-679 (Jan. 7, 2020, unclassified Jan. 23, 2020). See CNN: Government … Continue reading