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- 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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Fourth Amendment cases,
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--Electronic Communications Privacy Act (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 -
"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: Body searches
CA6: State sanctioned blood draws of newborns and keeping the samples stated 4A claim
Plaintiffs stated a Fourth Amendment claim that the state took blood samples from children to check for diseases and then retained them in the Michigan Neonatal Biorepository. Remanded for further consideration. Kanuszewski v. Michigan Dept. of Health and Human Services, … Continue reading
CA6: No QI for a baseless stop, strip search, and body cavity search and then tightening handcuffs for ptf’s complaining about his treatment
The officer gets no qualified immunity in his interlocutory appeal. On the complaint, plaintiff stated a claim that his stop was not objectively reasonable in the first place. A police dog was put into plaintiff’s vehicle, then it was searched … Continue reading
MA: Bag of dope protuding from butt crack was seized in a strip search, not a body cavity search
“During a lawful strip search of the defendant following his arrest, police officers observed a plastic bag protruding from the cleft between his buttocks and caused him to remove it; it was revealed to contain individually wrapped plastic bags of … Continue reading
NY1: Def denied opportunity to participate in hearing for body samples required reversal
A suspect from whom body samples (like DNA) are being taken is entitled by due process to participate in the search warrant issuance process. Here, he wasn’t. Reversed. People v. Goldman, 2019 NY Slip Op 02976, 2019 N.Y. App. Div. … Continue reading
N.D.Ohio: Corroboration of CI for rectal SW was thin, but GFE applies
Based on a CI that was partially corroborated, officers believed defendant was concealing drugs in his rectum. They obtain a search warrant for a rectal search. The probable cause from the CI is thin. “Basic fairness requires the government to … Continue reading
CA7: QI barred § 1983 over forced prison blood draw
Plaintiff is an inmate in prison who was ordered to give a blood test when prison officials decided he wasn’t acting right and might be high. His suit over the prison’s forced blood draw is barred by qualified immunity. Holm … Continue reading
W.D.Va.: Govt doesn’t get to photograph all tattoos on defs’ bodies, despite what’s available on social media; just those normally visible
The government can photograph defendants’ tattoos that are normally visible in daily use. The government cannot, however, photograph tattoos usually covered by clothes despite the fact they were occasionally revealed on social media pages. That’s not a waiver as to … Continue reading
D.Ariz.: A dog sniff of the person at the border is not “non-routine”
Defendant crossed into the U.S. at a pedestrian border crossing. A dog sniff of the person was conducted. “The Court finds that the intrusiveness of the canine search did not rise to the level of a non-routine search, which would … Continue reading
CA5: Officers get QI for body cavity search with SW that turned up nothing
Plaintiff’s pat down at the jail after a valid arrest led officers to believe that he had something protruding from his anus. He denied anything was there, and he refused to consent to removing it. Officers got a search warrant … Continue reading
NY1: Tossing backpack from car is waiver of REP
Defendant had no reasonable expectation of privacy in a backpack he tossed from a car as he was being stopped by the police. (This conviction was February 2013; nearly six years being decided on appeal.) People v. Febo, 2018 N.Y. … Continue reading
E.D.Mich.: Govt showed basis to get SW for def’s blood to prove he wasn’t taking the oxy he was prescribed
Defendant’s oxycodone use was tipped to the police by an automated system that he was prescribed 50 oxys a day for five years [yet wasn’t dead]. “The indictment further alleges that from November 2012-November 2017, Defendant filled prescriptions on a … Continue reading
CA9: Forced sex abuse exam of children without parental consent or court approval violates 4A
Children were removed from the home because of suspected child abuse and subjected to forced gynecological and rectal exams without any court authorization or parental knowledge or consent. The court assumes the “special needs” doctrine applies and then finds it … Continue reading
PA: There was no PC for entry on a two-month-old capias
Defendant was arrested as a result of an entry on a capias for a domestic relations “violation.” The warrant was two months getting served, and there was no inquiry into whether defendant was residing at the home of a friend … Continue reading
E.D.Ky.: Searching def’s underwear for drugs at 1:24 am on a virtually empty street that nobody likely saw was not unreasonable
The officer’s search of defendant’s underwear for drugs at 1:24 am on a dark night and nearly empty street was not a strip search and it was reasonably conducted. Nobody else was close enough to see anything. United States v. … Continue reading
CA6: Alleged inappropriate search of 17-year-old girl before letting her go to bathroom during traffic stop that led to a drug dog and finding nothing gets to go to jury
A traffic stop of plaintiff’s family led to calling a drug dog. While waiting for the drug dog, plaintiff had to use the bathroom, and the detaining officers called for a female officer to escort her to a nearby bathroom … Continue reading
CA9: No QI for IRS agent insisting that she watch ptf pee in her own bathroom during execution of tax SW
During an IRS criminal search, an IRS supervisory officer insisted that she watch plaintiff urinate in plaintiff’s own bathroom. This was sufficient to show an unreasonable invasion of privacy and overcome qualified immunity. Ioane v. Hodges, 2018 U.S. App. LEXIS … Continue reading
CO: Def doesn’t get a jury instruction in a DUI case that the officer could have sought a SW for blood
In a DUI case, defendant was not entitled to a jury instruction that the officer could have sought a search warrant for a blood draw. That’s not a jury question. People v. Gwinn, 2018 COA 130, 2018 Colo. App. LEXIS … Continue reading
Ars Technica: Cheese danish shipping, warrantless GPS trackers, and a border doctrine challenge
Ars Technica: Cheese danish shipping, warrantless GPS trackers, and a border doctrine challenge BY Cyrus Farivar:
WaPo: In horrifying detail, women accuse U.S. customs officers of invasive body searches
WaPo: In horrifying detail, women accuse U.S. customs officers of invasive body searches by Susan Ferriss, Center for Public Integrity:
TX8: Hospital can’t be sued under § 1983 for medical negligence and battery in conducting intensive body, pelvic, and rectal searches for CBP that produced nothing at all
Plaintiff, an El Paso resident, was stopped at the border coming into El Paso from visiting a friend and subjected to several searches for drugs, including taking her to the appellant hospital for x-rays and a pelvic exam. Nothing was … Continue reading