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- E.D.Ky.: When court can’t tell the dog alerted, motion to suppress granted
- OH1: A malnourished child isn’t exigency for an infant
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- D.Me.: Looking around house when allegedly “freezing” it was an illegal search
- OR: Police listening to attorney-client jail calls because attorney calls not properly segregated leads to dismissal of some counts and setting aside guilty plea
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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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Monthly Archives: December 2014
CA10: Govt used Doppler radar to determine if defendant was in house, but court doesn’t have to decide constitutional question
Defendant was wanted for not reporting to probation, and there was a warrant for his arrest. The government used Doppler radar to determine whether defendant was in his house at the time. The court has concerns about the use of … Continue reading
ID: In a search and seizure IAC claim, if def would lose on merits of search, he fails both prongs of Strickland
In an IAC claim involving a search claim, the trial court can determine the merits of the search claim. If the defendant would lose, he then loses both prongs of the Strickland standard. Remanded for making findings. Padilla v. State, … Continue reading
FL1: No Fourth Amendment or state law violation for P2P CP trolling to cross jurisdictional lines
A municipal police officer trolling P2P connections found child pornography on defendant’s computer. When she got the IP address, it was apparent the computer was located in another municipality nearby. The Fourth Amendment wasn’t violated by her extraterritorial examination of … Continue reading
D.Vt.: Def had no REP by giving a load of MJ to a driver to take to him in another state
Defendant packed marijuana in a trailer and entrusted it to a driver to take it to him in Vermont. The trailer was stopped in Illinois, subjected to a dog sniff, and the marijuana was found. The driver agreed to continue … Continue reading
Miami New Times: Miami Cops Misuse Tasers, With Deadly Results
Miami New Times: Miami Cops Misuse Tasers, With Deadly Results by Michael E. Miller: Richard Rosengarten walked into Publix at 4:20 p.m. November 15, 2013. Normally, not even Rosengarten, a brilliant and bespectacled University of Miami law student, would remember … Continue reading
WaPo: Radley Balko’s ‘The Watch’ Blog: “Horrifying civil liberties predictions for 2015”
WaPo: Radley Balko’s ‘The Watch’ Blog: Horrifying civil liberties predictions for 2015: How bad could it get? Maybe it’s best not to ask. . . . If you’ve made it this far, you’ve probably already figured out the joke. None … Continue reading
The New Yorker: Who Should Investigate Police Abuse?
The New Yorker: Who Should Investigate Police Abuse? by Jeffrey Toobin: To date, one serious proposal for reform has emerged. On December 8th, Eric Schneiderman, the Attorney General of New York, proposed that Governor Andrew Cuomo name him, Schneiderman, as … Continue reading
Fingerprint phone security: “Your fingerprint can be stolen by taking a photo”
The Hill: Your fingerprint can be stolen by taking a photo by Julian Hattem: A skilled hacker can replicate someone’s fingerprint based solely on a medium-range picture of their thumb, a prominent cyber expert proved over the weekend.
PA affirms grant of suppression motion where state carries burden of proof and put on nothing whatsoever
Grant of suppression motion is affirmed where the state carries burden of proof and put on nothing whatsoever, trying to put a burden on the defendant to at least go forward. That’s not state law. Commonwealth v. Enimpah, 2014 Pa. … Continue reading
PA decision that CI’s recording inside a house required a warrant affirmed by equally divided court
In 2013, Pennsylvania Superior Court held that the state constitution prohibits warrantless taping inside a suspect’s home with a video camera planted on an informant. Commonwealth v. Dunnavant, 2013 PA Super 38, 63 A.3d 1252 (2013) (posted here). That decision … Continue reading
W.D.N.C.: How ten day old information in an ongoing drug operation doesn’t get stale
The ongoing nature of defendant’s drug trafficking operation did not make the search warrant go stale where it was issued only ten days later. United States v. Black, 2014 U.S. Dist. LEXIS 176761 (W.D. N.C. December 23, 2014): Taking these … Continue reading
IA: Defendant claimed no interest in the house searched or what was seized, so he lacked standing
“The flaw in Jackson’s [IAC] argument is that he never claimed any expectation of privacy at his girlfriend’s apartment. In fact, Jackson claimed to have no interest in the apartment, denying he resided there or that any of the possessions … Continue reading
Motherboard: Researchers Release Full Data from 2012 Police Body Cam Study
Motherboard: Researchers Release Full Data from 2012 Police Body Cam Study by Adrienne Jeffries: The topline results-that cameras reduced the use of force by 60 percent and civilian complaints against police by 88 percent-were released by the Rialto police and … Continue reading
The Bustle: Ruth Bader Ginsburg’s 2014 Was Better Than Your 2014
The Bustle: Ruth Bader Ginsburg’s 2014 Was Better Than Your 2014 by Abby Johnston: This year, the Notorious RBG had heart surgery, celebrated her 81st birthday, and served her 21st year on the Supreme Court of the United States. But … Continue reading
Treatise on sale 31% off through midnight PT 12/31
The Treatise is 31% off at the Lexis bookstore through midnight Wednesday. The usual year-end sale. USE CODE JCM167831 EXPIRES December 31 @ 11:59 P.M. PT
D.Alaska: Incomplete tape recording of SW application doesn’t warrant suppression
The tape recording of the officer’s testimony supporting the issuance of the search warrant by a state court judge was incomplete. Nevertheless, there is no constitutional violation because what there is supports the warrant. Compliance with state law on this … Continue reading
OH11: Defendant’s admitting she consented to search at trial precluded IAC claim for not challenging consent
Defense counsel was not ineffective for not challenging defendant’s consent when she testified at trial that she consented to the search. State v. Driscol, 2014-Ohio-5608, 2014 Ohio App. LEXIS 5436 (11th Dist. December 22, 2014). Defendant’s prior DUI convictions weren’t … Continue reading
IA: State’s constructive possession argument at trial precluded raising standing for the first time on appeal
By arguing constructive possession in the trial court and not mentioning standing, the state waived standing for appeal. “The State claimed in the district court and on appeal that Baylor had constructive possession of the drugs found in the car. … Continue reading
WI: McNeely retroactive and abrogates prior law, but GFE saves prior blood draws
McNeely applies retroactively in Wisconsin, but the state gets the benefit of a Davis-type good faith exception [without citing Davis]. The lead case is State v. Kennedy, 2014 WI 132, 2014 Wisc. LEXIS 954 (December 26, 2014), where a car … Continue reading
CA1: TSA patdown searches because of metal body implants still reasonable on totality
Plaintiff has a metal hip implant, and she sets off TSA’s screening machines. This results in her getting a patdown. The court concludes that, on the whole, a patdown is reasonable under the Fourth Amendment and the ADA even if … Continue reading