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Recent Posts
- D.Utah: Police slow walked traffic stop without RS
- IA: Court ordered privilege review of search was at its expense
- D.Kan.: Preservation request under SCA isn’t a search or seizure
- UT: RS on a prior day was not RS for stop on day in question
- CA2: Ptf alleged invasion of privacy for 4A violation, and that’s enough
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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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"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: November 2015
N.D.Iowa: When no one answers a knock-and-talk, Jardines prohibits shining a flashlight in the window
The legal authority to enter to do a knock-and-talk under Jardines does not permit the police to shine flashlights in the windows when nobody answers. In addition, the government’s reliance on a Davis-type good faith exception for this conduct during … Continue reading
Two on Rodriguez and extended stops
The stop of defendant’s vehicle was extended for a dog sniff. The defense argued that it was unreasonable, and the trial court found it was de minimus. Rodriguez was then decided, and it applies. The dog sniff occurred after defendant … Continue reading
TX1: Issuing magistrate could conclude 11:59 am really meant 11:59 pm
When the magistrate read the search warrant for a blood draw, the magistrate was authorized to conclude that 11:59 am should have been pm instead, so the warrant was not stale. Somoza v. State, 2015 Tex. App. LEXIS 12037 (Tex. … Continue reading
S.D.Ga.: Corp. officer had no standing in search of company website; aside from the fact it’s on the Internet
Defendant had no standing over government search of a corporation’s website without showing that he had a reasonable expectation of privacy in the place searched. [If it’s on the Internet and open to the world, how is there conceivably any … Continue reading
The Hill: Spy court appoints new advisers under NSA reform law
The Hill: Spy court appoints new advisers under NSA reform law by Julian Hattem: The selections earned some early praise from privacy advocates.
D.Minn.: “other media” showing “address, vehicle, and location of narcotics proceeds” permitted seizure of cell phone
The search warrant authorized seizure of “other media that show standing for an address, vehicle, the location of narcotics proceeds, or a connection between people, addresses and vehicles or that a crime has been committed” and that permitted seizure of … Continue reading
CA9: Where findings were made by district court, a computer search condition is valid (dissent by Kozinski)
Defendant was convicted of felon in possession charges, and he kept records of his firearms. This authorized a computer search condition on supervised release where the predicate findings were made by the district court. (Dissenter says that there was no … Continue reading
N.D.Ala.: Fifth Amendment “public safety exception” creates exigency for protective sweep for weapon in hands of felon
The Fifth Amendment “public safety exception” for statements about firearms can also create exigent circumstances for a protective sweep for the gun. Defendant had a second degree murder warrant issued for him in 2015 for a 2008 murder in Buffalo. … Continue reading
DC: Jail cell search was for penological purpose, not criminal investigation
The government showed that the jail cell search of defendant was for legitimate penological purposes and not for criminal investigation. Tann v. United States, 2015 D.C. App. LEXIS 533 (Nov. 19, 2015). “The federal courts are not free-range problem solvers”; … Continue reading
LA5: Woman in a man’s hotel room for a tryst has apparent authority to consent to room search
The woman alone in defendant’s motel room to have sex with him had apparent authority to consent to a search. “Additionally, the search appears to have been reasonable under Illinois v. Rodriguez, supra. The police in the present case testified … Continue reading
Third party doctrine changes have to come from SCOTUS or Congress
One judge of the D.C. Cir.: NSA’s metadata collection from third parties not unconstitutional under Smith, and third party doctrine changes have to come from SCOTUS or Congress. Klayman v. Obama, 2015 U.S. App. LEXIS 20216 (D.C.Cir. November 20, 2015) … Continue reading
VA: Clump of air fresheners hanging from inside mirror justified stop
Defendant was under investigation for drug offenses, and, when he drove off, he had a clump of air fresheners hanging from his rear view mirror which violated state law. Drugs were found in his car. His void for vagueness challenge … Continue reading
ID: Auto search doesn’t have to stop where items in plain view were seized
Observation of contraband in plain view justified a search of a vehicle. The officer did not have to stop when he seized that which was first seen. State v. Anderson, 2015 Ida. App. LEXIS 118 (Nov. 17, 2015). Defendant was … Continue reading
D.Minn.: Assuming that the SW affidavit lacked PC, defendant makes no effort to show that the affidavit fit any of the exceptions to the GFE
Even assuming that the search warrant affidavit lacked probable cause, defendant makes no effort to show that the affidavit fit any of the exceptions to the good faith exception. United States v. Pettis, 2015 U.S. Dist. LEXIS 154439 (D.Minn. Oct. … Continue reading
The treatise is on sale through 12/31
The treatise is on sale through December 31st. www.lexisnexis.com/save25 or call 800-223-1940 and mention code “Save 25”
S.D.Fla.: Entry in a homicide investigation was by consent; def was seen and he ducked into a bedroom, and exigency permitted bedroom entry
“Here, both probable cause and exigent circumstances justified the First Search. At the time law enforcement arrived at the house, police had probable cause to arrest Joseph for homicide and armed robbery based upon the surviving victim’s and co-defendant’s identification … Continue reading
CA1: No QI for entry into wrong home chasing burglar; officer should have known this was unjustified
Officers pursuing a burglar down streets and into backyards was directed to a house by an unidentified person, and they entered it with a dog after allegedly announcing. No burglar, but the homeowner who was not pleased, and he got … Continue reading
FourthAmendment.com recognized in ABA Journal’s Blawg 100
Coming in Dec. 1 ABA Journal, online today. To those who voted, thank you. I didn’t know I was nominated this year. I was told by somebody I was last year but obviously didn’t make it then.