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- D.Mont.: 30-day delay in getting SW for seized storage building not unreasonable
- E.D.Cal.: Smell of MJ still PC in a California National Park even though not under state law
- CA10 dissent: Bivens on its last legs
- VA: Consent to look in backpack permitted search of pill bottle
- NY3: Warrantless arrest body cavity search was unreasonable
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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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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)
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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
OH7: After neighborhood shootout, bullet holes in door across street and no answer justified community caretaking entry
Police responded to a shootout on the street, and an officer went to defendant’s house and saw fresh bullet holes in the door. He knocked and got no answer. The next door neighbor said that the occupants had to be … Continue reading
WI: Apartment building’s parking garage was not part of the apartment’s curtilage
An apartment building’s parking garage was not part of the apartment’s curtilage. “Dumstrey appeals from a judgment of conviction for operating a motor vehicle while intoxicated (OWI), second offense. Dumstrey argues that the off-duty officer who pursued him in traffic … Continue reading
NYTimes: New Mexico: City to Revise Police Camera Policy
NYTimes: New Mexico: City to Revise Police Camera Policy by AP: Albuquerque police officials say their policy for the use of body cameras is nearly impossible to follow, and they told The Albuquerque Journal that a new policy for the … Continue reading
WI: Defendant was in a fight and called the police; no reason for community caretaking search of his house
Defendant and his brother got beat up by multiple people, and the police were called to his house. His brother had already left, leaving a blood trail to his car. On the totality, the police entry into defendant’s house was … Continue reading
CA10: If the affidavit for the search warrant satisfies Aguilar-Spinelli, it ipso facto satisfies Gates
The affidavit for the search warrant of this apartment included information from a CI that cocaine was recently packaged for sale there by a “black male.” Defendant’s attack on that as a bad ID of the seller doesn’t matter, because … Continue reading
CA6 applies GFE to a warrantless search to save the gov’t from a waiver issue
The court found the entry to defendant’s backyard invalid in 2012 (United States v. Fugate, 499 Fed. Appx. 514 (6th Cir. 2012)) because of waiver of an argument by the government. The case was remanded for a determination of whether … Continue reading
The New American: NSA Admits Ongoing Violations of Americans’ Privacy
The New American: NSA Admits Ongoing Violations of Americans’ Privacy by Thomas R. Eddlem: The NSA has been forced to admit it has violated American citizens’ personal privacy thousands of times — and even transgressed its own insanely loose rules … Continue reading
Note to readers: Getting ads or misdirects? If so, install malware protection software [updated]
I’ve been using a backup computer on occasion, and it didn’t have malware protection software. It’s downloading while I type this. First: At any rate, I’ve been getting ads popping up on this computer only. I have MalwareBytes on my … Continue reading
The Week: How Sonia Sotomayor became the Supreme Court’s preeminent defender of civil liberties
The Week: How Sonia Sotomayor became the Supreme Court’s preeminent defender of civil liberties by Scott Lemieux: The trailblazing justice has carved out an important niche on the high court in just a few short years
PA: Occupant of house lacked authority to consent to search intended guest’s luggage
Defendant left luggage and a shaving kit at his girlfriend’s apartment because he was coming back there to spend the night. They get stopped and defendant gets arrested. Defendant is a suspect in a robbery. The police get consent from … Continue reading
IL: Court ordered DNA test for parentage satisfied Fourth Amendment
In a parentage case, a court ordered DNA test did not violate the Fourth Amendment because the proponent of the test had to show that it would provide relevant evidence. The Illinois Supreme Court removed a “good cause” showing from … Continue reading
No REP in peer-to-peer file sharing. Yes, that issue is still raised
Defendant’s computer was on the Gnutella peer-to-peer network. The police went in and found 1571 files for sharing and did a software driven search and found child porn on some of them. A week later they went back and found … Continue reading
Santa Busted in Little Rock
Always vigilant. Must have been based on a stop because of LPN from a source state. Might have been the brownish skin.
The Hill: Police and the complexity of the law
The Hill: Police and the complexity of the law by Tobias T. Gibson: Who knows the law – and who is expected (or not expected) to know it?
E.D.Wis.: Illegal patdown led to arrest and detention and confession which led to false ATF form; all suppressed because no intervening circumstance
“Defendant witnessed a crime. Rather than leaving the scene, he remained to talk to the police. The police then violated his Fourth Amendment rights by subjecting him to a suspicionless pat-down, and the ATF took advantage of his arrest on … Continue reading
CA10: Unsigned search warrant curable by testimony; not a fatal defect
The Fourth Amendment does not require a search warrant be physically “signed” to issue. This case litigated it in detail in a § 2255 post-conviction proceeding relying on Groh. [See note below.] United States v. Cruz, 2014 U.S. App. LEXIS … Continue reading
OH8: Although officers were invited in by apparent consent, protective sweep was justified in dark room with a closet
Officers received a call about a person being held at gunpoint at a house. Dispatch noted to itself that this might be a prank call, but didn’t tell the officers that. They got to the house and were let in. … Continue reading
NM: DA criticized for failing to consolidate codefendants for appeal of suppression order
The writ of cert in this case is quashed. There were two cases that should have been noted as companion cases by the DA when the appeals were filed and weren’t. That was important information that bore on avoiding inconsistent … Continue reading