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- 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
- MA: Mere denial is not a “substantial preliminary showing” for Franks
- TN: “Possessions” in search clause of state const. gives REP in rural hunting land
- GA grants review of geofence and GFE case
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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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--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: December 2015
N.D.Ala.: Pretrial detainee can’t sue over false arrest yet
Defendant was pretrial detainee suing over his arrest. At this stage, the § 1983 suit should be dismissed without prejudice because it might implicate whether he was wrongfully charged in the first place and thus violate Heck. Ferguson v. Alabama, … Continue reading
IL: Cell phone search was not subject to community caretaking function where purpose was to call his relatives, but they looked at texts
Defendant’s cell phone was searched four years before Riley, and the state conceded that it applied. So, it argued that the community caretaking function or consent applied, and the court found neither applied. The state argued that the officers searched … Continue reading
D.Minn.: Even if def’s stop was without RS, his flight and subsequent traffic violations were an independent basis for arrest
Officers had reasonable suspicion to approach defendant’s vehicle for being engaged in a pending drug sale. “However, even if officers lacked reasonable suspicion to support the stop of defendant’s vehicle, the Court finds that defendant’s attempt to flee from law … Continue reading
NY4: Search incident of def’s jacket at stationhouse long after arrest was unreasonable
Thirty-eight months after defendant was convicted, most of the counts are reversed and dismissed because of an unreasonable search incident of his jacket. Defendant was arrested wearing the jacket and he pulled his hands out of the pockets and a … Continue reading
PA: Plain view of possession of a firearm is RS to see if the person is licensed or not
“‘[P]ossession of a concealed firearm in public is sufficient to create a reasonable suspicion that the individual may be dangerous, such that an officer can approach the individual and briefly detain him in order to investigate whether the person is … Continue reading
D.Nev.: “[T]he government does not require probable cause to ‘search’ its own records.”
Assuming defendant had standing to a residence as an overnight guest, the police had specific information linking him to the residence and probable cause for a search warrant. A check of DMV records on him did not require probable cause. … Continue reading
Two on staleness: for a stolen rifle and a backpack in the same condition
A search warrant for a stolen rifle was not stale because the CI’s statement of probable cause was two months old. Plenty of authority holds that staleness doesn’t often apply to firearms because they are items that are kept. “Consistent … Continue reading
WaPo: Wonkblog: New federal rules will subject truck drivers to more monitoring than ever
WaPo: Wonkblog: New federal rules will subject truck drivers to more monitoring than ever by Lydia DePillis: And they’re not very happy about it. [And under the third-party doctrine, the government can subpoena it all for use in a prosecution.]
WaPo: In fatal traffic stops, black motorists are killed more often
WaPo: In fatal traffic stops, black motorists are killed more often by Wesley Lowery: According to a Post database of police shootings, one in three people killed by police after a traffic stop was black — even though whites and … Continue reading
D.Md.: Gov’t justified its NSL in this case in classified filings; nondisclosure provision here survives First Amendment scrutiny
The government justified its NSL in this case in classified filings, which will be supplemented with redacted versions. The court finds that the nondisclosure requirement survives First Amendment scrutiny, but the government is required by the USA FREEDOM Act to … Continue reading
Three on fair probability of evidence in the home: two for drugs, other for counterfeit wine
The affidavit for the search warrant showed a fair probability that drugs would be found at defendant’s home, based largely on the officer’s experience that drug dealers usually do keep it at home. United States v. Brandon, 2015 U.S. Dist. … Continue reading
CA8: Tasering suspected armed and dangerous arrestee was subject to qualified immunity, even when it turned out officers were reasonably mistaken as to ID of suspect
U.S. Marshals reasonably believed the plaintiff was a wanted armed and dangerous felon. He backed away and refused to submit to arrest and was Tasered. “We have since confirmed that ‘non-violent, non-fleeing subjects have a clearly established right to be … Continue reading
S.D.Cal.: Dog alert shown not reliable in an immigration checkpoint case
“In this case, the Highway 86 checkpoint [at El Centro, CA] is a permanent checkpoint operated solely by Border Patrol agents. During the past three year period, there were approximately 1,746 apprehensions at the checkpoint, including 1,579 immigration-related apprehensions and … Continue reading
OH4: Dog alert here conflated into RS question
Defendant was stopped for following too close and the state trooper found that she had a territorially limited DL, and she was outside the territory. He remembered her from a prior drug investigation and called for a drug dog. The … Continue reading
C.D.Cal.: Davis applies to GPS placed three years before Jones
A GPS device was placed on defendant’s motorbike in Phnom Penh, Cambodia in 2009 by a CI working for the U.S. government. Davis applies because Jones wasn’t decided until 2012. United States v. Boyajian, 2015 U.S. Dist. LEXIS 170782 (C.D.Cal. … Continue reading
CA4: Officer’s lie about existence of SW required suppression
The officer knowingly lied about the existence of a search warrant to gain access to defendant’s house. The district court (United States v. Rush, 2014 U.S. Dist. LEXIS 32632 (S.D. W. Va., Mar. 13, 2014)): “In view of the limited … Continue reading
WaPo: Radley Balko’s “The Watch” Blog: Morning links: Half the victims of Georgia police shootings were unarmed or shot in the back
WaPo: Radley Balko’s “The Watch” Blog: Morning links: Half the victims of Georgia police shootings were unarmed or shot in the back: … Atlanta Journal-Constitution analysis of 184 Georgia police shootings since 2010 finds that nearly half the victims were … Continue reading
WaPo: The Justice Department just shut down a huge asset forfeiture program
WaPo: The Justice Department just shut down a huge asset forfeiture program by Christopher Ingraham: The Department of Justice announced this week that it’s suspending a controversial program that allows local police departments to keep a large portion of assets … Continue reading
Techdirt: Fourth Amendment Update: ‘Community Caretaking’ Narrowly Defined; ‘Inevitable’ Discovery No Excuse For Illegal Discovery
Techdirt: Fourth Amendment Update: ‘Community Caretaking’ Narrowly Defined; ‘Inevitable’ Discovery No Excuse For Illegal Discovery by Tim Cushing: