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- D.Me.: Looking around house when allegedly “freezing” it was an illegal search
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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)
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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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Monthly Archives: March 2015
E.D.Mich.: Unverified tip didn’t justify a drug test of a public employee
“In this 42 U.S.C. § 1983 action, Plaintiff claims that his employer ordered him to undergo a urine drug test without reasonable suspicion that he had used drugs on the job, in violation of his Fourth Amendment right to be … Continue reading
Lawfare: Where are the Section 215 Cases — and What Impact Will They Have?
Lawfare: Where are the Section 215 Cases — and What Impact Will They Have? by Orin Kerr: Section 215, the law that has been interpreted to authorize the controversial bulk telephony metadata program, will sunset in about two months — … Continue reading
CA4: Without emotional distress claim, knock-and-announce violation worth only nominal damages
A knock-and-announce violation is clearly established law, so no qualified immunity. But here, without an emotional distress claim, it’s only worth nominal damages, so the damages should be remitted. Here, there was a death of another, but plaintiff waived any … Continue reading
D.Utah: A commercial vehicle inspector without state arrest authority could still detain under the Fourth Amendment
Defendant stopped his truck at a weigh station, and a computer check was run on him. It turned out there was an order of protection between him and his passenger, a minor. The commercial vehicle inspector could detain him under … Continue reading
Techdirt: California Legislators Pushing Warrant Requirement For All Access To Electronic Information, Including That Obtained By Stingrays
Techdirt: California Legislators Pushing Warrant Requirement For All Access To Electronic Information, Including That Obtained By Stingrays by Tim Cushing: Good news from California: a bill requiring warrants for Stingray device usage (among other things) has passed out of a … Continue reading
AP: Report: Racial disparities in arrests persist with legal pot
AP: Report: Racial disparities in arrests persist with legal pot by Kristen Wyatt: Not surprisingly, the legalization of marijuana in Colorado has reduced pot arrests, but a newly released study says it doesn’t solve one of the central goals of … Continue reading
WaPo: Police body camera experiment in San Diego produces promising results
WaPo: Police body camera experiment in San Diego produces promising results by Radley Balko: There are still some issues to be worked out. One important one is determining how much and under what conditions video footage will be released to … Continue reading
WaPo: Pressure to rein in NSA data collection
WaPo: Pressure to rein in NSA data collection by Ellen Nakashima: The nation’s top technology firms and a coalition of privacy groups are urging Congress to place curbs on government surveillance in the face of a fast-approaching deadline for legislative … Continue reading
CA9: Parole search includes the car the parolee was driving when stopped
Defendant’s argument that a parole search of a parolee driving a car can’t include the car is rejected. A gun was found hidden under the cover the of gearshift lever. United States v. Bautista, 2015 U.S. App. LEXIS 4798 (9th … Continue reading
D.Nev.: SW request for Apple to unlock iPads and iPhones denied as a general search and without search protocol
The government’s request for a search warrant for Apple to unlock and override passwords on four iPads and two iPhones is denied. The search warrant application lacks probable cause and no search warrant protocol for electronic devices. It amounts to … Continue reading
Cal.3: “Reason to believe” in administrative search law means same as PC
Treating an examination of an insurance company’s unclaimed property as an administrative search, “reason to believe” in the California unclaimed property law is no greater than probable cause to get a search warrant, following Lincoln Bank & Trust Co. v. … Continue reading
OH5: Defendant didn’t rebut the presumption of regularity of the warrant
Defendant didn’t rebut the presumption of regularity of the warrant. “There is a presumption of regularity when an arrest or a search is authorized by a warrant. A judicial officer has conducted a prior review of the facts and circumstances … Continue reading
WaPo: New Mexico legislature passes sweeping bill to rein in forfeiture abuses
WaPo: Radley Balko: New Mexico legislature passes sweeping bill to rein in forfeiture abuses: State would require a criminal conviction for law enforcement to seize and keep property.
WSJ: Two Supreme Court Justices Say Criminal-Justice System Isn’t Working
WSJ: Two Supreme Court Justices Say Criminal-Justice System Isn’t Working by Jess Bravin: Justice Breyer says mandatory minimum sentences are “a terrible idea” WASHINGTON—Two Supreme Court justices told a House subcommittee Monday that the American criminal-justice system is too harsh, … Continue reading
OH2: Anonymous tip of shooting was corroborated enough by witnesses at scene
The anonymous tip defendant was involved in a shooting was corroborated by people at the scene who pointed to defendant’s house and blood drops outside, and it led to a fair inference that the shooter or a victim was inside. … Continue reading
OH11: Officer’s delay in investigation of defendant made pursuit no longer “hot pursuit”
The officer had probable cause for defendant’s arrest, but it wasn’t any longer hot pursuit because the officer directed his attention elsewhere. The entry into defendant’s house could not be justified by hot pursuit. State v. Lowe, 2015-Ohio-1064, 2015 Ohio … Continue reading
CA1: There was RS for the border search of defendant’s computer and cell phones
Defendant made his fifth short trip from Puerto Rico to Colombia in a few months, and he was flagged for secondary border screening. His older but operational laptop had no data on it. Questions about his trip made no real … Continue reading
GA: Anonymous informant not corroborated by misd possession of small amount of pot and a gun
“On appeal, Wiggins contends that the search warrant was invalid because the supporting affidavit—which relied solely on an uncorroborated tip from an anonymous informant [he was moving 50 pds a week], Wiggins’s possession of a personal-use amount of marijuana, and … Continue reading