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- MO: Def’s 4A ineffective assistance claim fails because he doesn’t show he’d prevail on the 4A claim
- C.D.Cal.: Requiring a building demolition permit doesn’t state a 4A claim
- E.D.Cal.: Def’s arrest based on drunkenness was without PC
- E.D.Tex.: Corporate Transparency Act enjoined, but 4A claim as yet unresolved
- Hell Gate: 83 Percent of ShotSpotter Alerts Might Not Have Been Gunfire at All
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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 (27,400+ on WordPress as of 7/23/24) -
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Fourth Amendment cases,
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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)
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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: Search
W.D.Okla.: Military vaccine mandate applies to National Guard and it is not a search or seizure
The Covid vaccination mandate for the military does not exempt the National Guard. Oklahoma v. Biden, 2021 U.S. Dist. LEXIS 246534 (W.D.Okla. Dec. 28, 2021). As to the Fourth Amendment claim:
D.Minn.: Merely unlocking cell phone without looking in it is not a search
“[U]sing a passcode to unlock Defendant’s cellphone without exploring the contents of the phone does not constitute a search under the Fourth Amendment.” United States v. Jackson, 2021 U.S. Dist. LEXIS 202192 (D.Minn. Oct. 20, 2021). The protective sweep was … Continue reading
IN: Privilege against self-incrimination is not self-executing as to cell phone password disclosure
Defendant’s mid-trial motion to suppress a cell phone search was waived: It was not timely, and defendant consented to giving the passcode and gave consent to search it. The privilege against self-incrimination is not self-executing here. Kerner v. State, 2021 … Continue reading
NY: Failure to swear to facts of standing dooms motion to suppress
Failing to swear to facts supporting standing is fatal to a Fourth Amendment claim in New York. People v. Ibarguen, 2021 NY Slip Op 05617, 2021 N.Y. LEXIS 2207 (Oct. 14, 2021) (Wilson dissents again (see today’s prior post of … Continue reading
ID: Drug dog’s nose through a car window before alerting is a search and a Jones trespass
A drug dog’s nose through a car window before alerting is a search and a Jones trespass. De minimis, yet, but still a trespass. There was no probable cause for the automobile exception, and the state waived standing by not … Continue reading
N.D.Cal.: “Hot watch” order for real time travel information isn’t disclosable yet; matter still under investigation
The government made an “Application request[ing] an order compelling Sabre, a travel technology firm, ‘to provide representatives of the FBI complete and contemporaneous ‘real time’ account activity’ for an individual subject to an arrest warrant—what the government refers to as … Continue reading
CA4 (en banc 8-7): Baltimore’s aerial surveillance program is a “search” under Carpenter
The Baltimore Police Department’s aerial surveillance program is a search under Carpenter because of the detail it provides and the viewers of the information can go back in time. Leaders of a Beautiful Struggle v. Baltimore Police Department, 2021 U.S. … Continue reading
S.D.Ohio: Social workers must comply with 4A
Social workers must comply with the Fourth Amendment, and they can plead exceptions. Scharbrough v. South Central Ohio Job & Family Servs., 2021 U.S. Dist. LEXIS 105993 (S.D. Ohio June 7, 2021)*:
CA6: Detention with handcuffing on RS permitted putting def in police car
There was reasonable suspicion for defendant’s detention, including putting him in a police car while they sorted it out. That was not yet an arrest. United States v. Rogers, 2021 U.S. App. LEXIS 16160 (6th Cir. May 27, 2021). The … Continue reading
CA7: Pre-Carpenter real time CSLI tracking def on streets to locate him before he committed another robbery was not unreasonable
The fact officers had probable cause to arrest is considered in determining good faith. In addition, “To conclude, we hold that Detective Ghiringhelli did not conduct a Fourth Amendment ‘search’ by requesting the real-time CSLI of a suspect for multiple … Continue reading
NC: State has burden of proof BRD on 4A harmless error
The state carries the burden of proving harmless error for a Fourth Amendment beyond a reasonable doubt. State v. Scott, 2021-NCSC-41, 2021 N.C. LEXIS 321 (Apr. 16, 2021). The evidence supports that the person consenting had apparent and actual authority … Continue reading
W.D.Wash.: Test-firing a firearm to help identify it is a reasonable search
“The Court concludes the test-firing of the weapon was a search. It was test-fired for one sole purpose and that was to gain identifying data on the retained shell casing for subsequent submission to a database of shell casings obtained … Continue reading
E.D.N.C.: Officer’s reach into car was search, but justified by automobile exception
The reach into defendant’s car was a search, but it was justified by the automobile exception. United States v. Joyner, 2021 U.S. Dist. LEXIS 68324 (E.D. N.C. Mar. 15, 2021). Defendant’s stop wasn’t unreasonably extended. “Although Officer Hambrock walked back … Continue reading
D.D.C.: Requirement of a medical exam to determine if a firefighter can return to duty isn’t 4A violation
“McCrea claims that Defendants violated her Fourth Amendment right to privacy by ordering her to undergo psychological assessments that went beyond the essential functions of her job as a firefighter. … The Fourth Amendment protects an individual’s ‘reasonable expectation of … Continue reading
CA6: No interstate commerce nexus needed for a federal search and seizure
There is no interstate commerce predicate to a federal search and seizure. Defendant cites no authority and the court doesn’t find one. United States v. Watson, 2021 U.S. App. LEXIS 8564 n.3 (6th Cir. Mar. 22, 2021). Remanded a second … 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