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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)
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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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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: Standards of review
OH6: Merely being “associated” with a vehicle doesn’t confer standing
“In his motion to suppress, he asserted only that he was ‘associated’ with the truck. We find an ‘association’ with the vehicle gives no greater rights than a mere passenger. Therefore, we agree with the state that appellant could not … Continue reading
MD: Issue on appeal more nuanced and different that one presented to the trial court
Defendant’s issue on appeal is more nuanced, yet not the same as the one argued before the trial court, so there is no authority to decide it. So, the court does for the sake of argument, and it finds nexus. … Continue reading
VT: Entry into respondent’s land to investigate open fire was reasonable
Respondent was burning something on his open land without a burn permit. Firefighters were called, and they observed from the road that the color of the smoke indicated something other than natural wood was being burned. From their view, however, … Continue reading
MD: Drug dog’s reliability is not subject to de novo appellate review
Whether a drug dog is reliable is a question committed to the trial court. It is not subject to de novo review on appeal. Grimm v. State, 2017 Md. App. LEXIS 413 (April 26, 2017). In this death case, there … Continue reading
N.D.Iowa: Just because the officer had “unquestioned command of the situation” during a traffic stop doesn’t preclude conducting a frisk for weapons
Just because the officer had “unquestioned command of the situation” during a traffic stop doesn’t preclude the officer from conducting a frisk for weapons. Here, the stop was at night, in a high crime area, there were only streetlights, and … Continue reading
TN: State’s failure to challenge trial court’s findings entry to curtilage was unreasonable is waiver
Officers had a levy for unpaid court costs, and it wasn’t uncommon for drug officers to come along for the seizure. The record supported the conclusion that defendant did not affirmatively and expressly disclaim or relinquish his privacy interest in … Continue reading
NY4: Testimony at trial can’t be used on appeal of a suppression issue
Even if defendant had standing, the search was justified by consent. “In contending that the resident did not give consent, defendant improperly relies on testimony of the resident of the home at the first trial, which ended in a hung … Continue reading
OH10: Bare bones findings didn’t support finding search was valid; remanded
The trial court’s bare bones findings were insufficient to support the conclusion that the search was valid. Remanded. State v. Edwards, 2016-Ohio-4771, 2016 Ohio App. LEXIS 5413 (10th Dist. June 30, 2016). Not challenging the Playpen warrant in this case … Continue reading
KY: SW moots consent argument
Officers entered defendant’s home to secure a firearm and then returned with a search warrant. Defendant’s consent argument is moot. Lundy v. Commonwealth, 2017 Ky. App. LEXIS 22 (Jan. 27, 2017). The court properly overruled defendant’s motion to suppress a … Continue reading
