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Recent Posts
- GFR: Feds Demand Identity Of YouTube Users Who Watched Certain Videos
- W.D.Wash.: DNA warrant isssued with PC not quashed before execution
- S.D.Ohio: Defense of denial of possession in drug case meant no assertion of standing to challenge the search, so no IAC
- N.D.Okla.: Anticipatory tracking warrant for money counter is without authority and nexus is speculative even if not
- CA9: Supervised release condition of financial disclosure permitted under 18 U.S.C. § 3553(a) and didn’t violate 4A
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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 -
© 2003-24,
online since Feb. 24, 2003 Approx. 425,000 visits (non-robot) since 2012 Approx. 45,000 posts since 2003 (26,730+ on WordPress as of 12/31/23) -
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Congressional Research Service:
--Electronic Communications Privacy Act (2012)
--Overview of the 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: Abandonment
S.D.Ohio: Affidavit for SW showed home was base of DTO
The collection of information for probable cause for the warrant included a reasonable inference that defendant’s home was a base of operations for a drug trafficking operation, and this was nexus. United States v. Jackson, 2021 U.S. Dist. LEXIS 144185 … Continue reading
CA7: SW affidavit would have been useful at sentencing on drug quantity but defense didn’t offer it
The search warrant affidavit here could have been relevant to the drug quantity calculation, and defendant should have put it into evidence at sentencing. United States v. Rollerson, 2021 U.S. App. LEXIS 22622 (7th Cir. July 30, 2021). Defendant was … Continue reading
S.D.Ind.: Blood in car transporting shooting victim to ER justified SW for it
Defendant was driven to an ER after 2 am for having been shot. Out in the ER parking was the car with blood and guns in it. A state judge issued a search warrant for the car, and that resulted … Continue reading
D.C.: Illegal patdown without RS caused def’s flight; discard of gun in flight excluded
The patdown of defendant was manifestly unreasonable, and defendant’s flight was thereafter. The exclusionary rule should be applied to this. Johnson v. United States, 2021 D.C. App. LEXIS 187 (July 15, 2021):
N.D.Ind.: Search incident of unconscious man unreasonable without arrest or justification
A search incident of the unconscious defendant was unreasonable because it lacked any justification. He wasn’t arrested to be searched incident to it. United States v. Johnson, 2021 U.S. Dist. LEXIS 125188 (N.D. Ind. July 6, 2021). Defendant abandoned his … Continue reading
D.Nev.: Abandonment after unreasonable seizure not voluntary
There was no reasonable suspicion for defendant’s detention before he fled the officer. The alleged abandonment occurred after the unreasonable seizure, so it was involuntary. United States v. Dudley, 2021 U.S. Dist. LEXIS 117108 (D. Nev. June 23, 2021). Florida’s … Continue reading
IA: State constitution prohibits warrantless trash search; “Current Fourth Amendment jurisprudence is a mess.”
Finding Iowa law long recognized trespass was an unreasonable entry, the state Supreme Court holds under the state constitution that trash out for collection by the trash collector is not abandoned property, and defendant still retained a reasonable expectation of … Continue reading
D.Mass.: 14 day delay between seizure and search of cell phone reasonable
This 14 day delay between the seizure of his cell phones and the application of the warrant to seize them is reasonable. In addition, there is no Fourth Amendment right to have a search warrant issued sooner than it was, … Continue reading
E.D.N.C.: Window tint violations always require a stop
Window tint violations require a stop to verify. “But the Supreme Court has said that ‘[t]o be reasonable is not to be perfect, and so the Fourth Amendment allows for some mistakes on the part of government officials, giving them … Continue reading
IA: Officer’s complying with 4A is not an element of the underlying crime for the jury
The officer’s complying with the Fourth Amendment in the stop and arrest is not an element of defendant’s crime [or any crime]. State v. Chivalan, 2021 Iowa App. LEXIS 381 (Apr. 28, 2021) [one can, in some cases, get an … Continue reading
CA9: Saying you just found the backpack you’re carrying in a dumpster shows no REP
“First, the court did not clearly err in finding that Gage had abandoned any reasonable expectation of privacy in the backpack by telling Officer Robinson that the group had just retrieved the backpack from a garbage dump and that he … Continue reading
D.Ariz.: Def’s motion to unseal SW affidavit denied because of ongoing investigation
Defendant’s motion to unseal the affidavit for the search warrant is denied because of an ongoing investigation it would reveal and because he can’t show a lack of probable cause for the search. United States v. Calleta, 2021 U.S. Dist. … Continue reading
OH5: Def didn’t abandon cell phone but it was still reasonable for officer to turn it on to see if he could ID owner
Defendant did not abandon his cell phone by leaving it charging in a vehicle (actually, it had fallen out but the charging cable was attached) where he was away from it. However, the officer reasonably could turn on the phone … Continue reading
CA10: Nexus shown to AZ residence where additional records were found
A search of a pain management doctor’s Arizona residence was based on nexus to his Wyoming medical practice. The government showed that patient records were in both places. United States v. Khan, 2021 U.S. App. LEXIS 5611 (10th Cir. Feb. … Continue reading
D.P.R.: Getting out of car and running away from it on seeing the police is abandonment
Defendant didn’t file a declaration under penalty of perjury contesting the facts alleged in his criminal complaint. He also fails to show even a subjective reasonable expectation of privacy in the place searched to give him standing. He abandoned his … Continue reading
NY: Denial of ownership of a key fob found under def at his arrest is abandonment of the car
Defendant could be detained during the search of his house under a warrant. When he got up off the floor, there was a key fob underneath him, and he denied it was his. The officers used the panic button to … Continue reading
D.C.Cir.: IAC claim presented first in court of appeals decided without remand; claim fails on its face
Defendant raised his ineffective assistance claim first in the Court of Appeals. Usually, the court says it would remand for an evidentiary hearing. Here, however, his allegation is facially insufficient and the issue is decided without a remand. The challenge … Continue reading
E.D.Tenn.: Leaving suitcase in an open grassy area is a loss of a REP in it
Defendant left his suitcase in an open grassy area, and that was a waiver any reasonable expectation of privacy in it. See United States v. Wilson, 984 F. Supp. 2d 676 (E.D. Ky. 2013) (leaving suitcase in a cemetery was … Continue reading
D.Mass.: Def accidentally lost his fanny pack in flight; court finds abandonment even though he didn’t intend it
The court finds defendant abandoned his fanny pack which he said was strapped over his chest and fell off during flight from the police. He testified he didn’t intentionally drop the fanny pack, and it must have slipped off while … Continue reading
TX: Is abandonment of a car also abandonment of the information in a cell phone left in it?
Dissent on denial of a petition for discretionary review: The court should decide whether fleeing a car and leaving one’s cell phone behind is abandonment. The court of appeals below held it was. Wiltz v. State, 595 S.W.3d 930, 936 … Continue reading