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- Volokh: Do Fourth Amendment Protections Change When Property Is Moved?
- M.D.Pa.: Def was neither shipper nor recipient of USPS parcel, so he had no standing in it
- WI: Obtaining def’s DNA by ruse wasn’t an illegal search
- WaPo: Apple, Google and Venmo fight new U.S. plan to monitor payment apps
- CA4: Tracking order using cell site simulator with PC was reasonable
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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)
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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: September 2015
KY: Payton’s “reason to believe” the person named in the arrest warrant is home is less than probable cause
Payton’s “reason to believe” the person named in the arrest warrant is home is less than probable cause. This is apparently the majority rule. Barrett v. Commonwealth, 2015 Ky. LEXIS 1859 (September 24, 2015):
N.D.Ill.: No REP in the hallway of a U-Haul storage facility from a dog sniff
Defendant did not have a reasonable expectation of privacy in the hallway of a U-Haul storage facility. Thus, a dog sniff there was probable cause for a search warrant for the storage unit. United States v. Flores, 2015 U.S. Dist. … Continue reading
ID: Exclusionary rule doesn’t apply to DL suspension
The exclusionary rule doesn’t apply to administrative license suspensions for driving under the influence. Bobeck v. Idaho Transp. Dep’t, 2015 Ida. App. LEXIS 86 (September 24, 2015). Defendant was stopped for speeding, but he couldn’t answer basic question about much … Continue reading
Two on qualified immunity
Officers arrived at the scene of a shooting and immediately called for EMS, and called twice more before they finally arrived. Plaintiffs’ quarrel was that they weren’t more emphatic about the degree of injury. “A reasonable officer in Piotrowski’s or … Continue reading
N.D.Iowa: Anonymous 911 call wasn’t good enough under Florida v. J.L.
This 911 call that defendant was likely with a gun was more like Florida v. J.L. than Naverette v. California, and it lacked indicia of reliability. While it’s a “close case,” the motion to suppress should be granted. “Nothing in … Continue reading
NJ goes back to automobile exception and retreats from its 2009 requirement of a telephonic search warrant if at all possible in automobile searches
New Jersey retreats from its 2009 requirement of a telephonic search warrant if at all possible in automobile searches essentially as a failed experiment. Thus, the court goes back to probable cause and exigency and the automobile exception. State v. … Continue reading
MA: Because possession of MJ is a civil infraction, the smell of burnt MJ in a car isn’t probable cause to search the car where there was no showing of need to protect highway safety
“A District Court judge erred in denying the criminal defendant’s pretrial motion to suppress evidence of controlled substances that a police officer discovered after having stopped the defendant’s motor vehicle following the detection of an odor of burnt marijuana coming … Continue reading
D.Haw.: Alleged illegal search by “marshals of the Kingdom of Atooi” wasn’t acquiesced in by federal or state officials
A crate of marijuana was searched by “marshals of the Kingdom of Atooi,” a Polynesian kingdom within Hawai’i not otherwise described. Their search was not at insistence or with the acquiescence of the state or federal government, and it could … Continue reading
CA5: Shooting suicidal person in back so he wouldn’t turn was objectively unreasonable; framing him for assault on an officer violates due process
It was objectively unreasonable to shoot a young man with a gun to his own head when his back was to the officers. Plaintiff also made a prima facie due process claim for being framed by the police for assaulting … Continue reading
WaPo: Obama administration explored ways to bypass smartphone encryption
WaPo: Obama administration explored ways to bypass smartphone by Andrea Peterson and Ellen Nakashima: An Obama administration working group has explored four possible approaches tech companies might use that would allow law enforcement to unlock encrypted communications — access that … Continue reading
Wall Street Journal Law Blog: Spy Court Recruits Outside Lawyer in Phone-Records Case
Wall Street Journal Law Blog: Spy Court Recruits Outside Lawyer in Phone-Records Case by Joe Palazzolo: The Foreign Intelligence Surveillance Court occupies a super secure space inside the U.S. District Court for the District of Columbia, behind a biometric hand-scanner … Continue reading
WaPo: Volokh Conspiracy: Fifth Amendment protects passcode on smartphones, court holds
WaPo: Volokh Conspiracy: Fifth Amendment protects passcode on smartphones, court holds by Orin Kerr:
The Guardian: Court hears first arguments in case challenging bulk data collection by NSA
The Guardian: Court hears first arguments in case challenging bulk data collection by NSA by Nicky Wolff:
NYTimes: Police Program Aims to Pinpoint Those Most Likely to Commit Crimes
NYTimes: Police Program Aims to Pinpoint Those Most Likely to Commit Crimes by John Eligon and Timothy Williams: Mr. Brown, whose criminal record includes drug and assault charges, is at the center of an experiment taking place in dozens of … Continue reading
NYTimes: Postal Service Failed to Protect Personal Data in Mail Surveillance, Report Says
NYTimes: Postal Service Failed to Protect Personal Data in Mail Surveillance, Report Says by Ron Nixon: WASHINGTON — Employees of the United States Postal Service failed to properly safeguard documents that included the names, addresses and financial information used by … Continue reading
The Economist: Welcome to the Drone Age
The Economist: Welcome to the Drone Age Miniature, pilotless aircraft are on the verge of becoming commonplace Some analysts think the number of drones made and sold around the world this year will exceed 1m. In their view, what is … Continue reading
CA3: Appellate order reversing revo overcame Heck bar
Plaintiff had his probation revoked and reversed it on appeal. The appellate court’s order, although not addressing his specific issue, was still a termination in his favor for the Heck bar in a § 1983 case for wrongful prosecution. “This … Continue reading
E.D.Tex.: Gunshots inside a house, screaming, and blood outside was exigent circumstances
Gunshots inside a house, screaming, and blood outside was exigent circumstances. [Yet it was argued it wasn’t. Hey, sometimes we have to.] United States v. Vanhorn, 2015 U.S. Dist. LEXIS 127261 (E.D.Tex. September 21, 2015). A doctor was denied qualified … Continue reading
AOL Autoblog (from NWI Times): Dash cam shows cops pulling gun on couple and pregnant woman in labor during traffic stop
AOL Autoblog (from NWI Times): Dash cam shows cops pulling gun on couple and pregnant woman in labor during traffic stop by Sarah Reese. This was three years ago, and the video was just released.