Archives
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Recent Posts
- 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
- CADC: When searching a cell phone and officers find it belonged to someone else, a new SW isn’t required; SWs are directed at things, places, and people and owner doesn’t matter for PC
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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,
citations, and links -
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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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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: February 2016
E.D.N.Y.: Apple can’t be forced to unlock an iPhone; not the California case
Apple wins first encryption case in E.D.N.Y. Court refuses to order phone opened, via techcrunch. In re Order Requiring Apple, Inc. to Assist in the Execution of a Search Warrant, 15-MC-1902 (JO) (E.D.N.Y. Feb. 29, 2016)( (USMJ Orenstein):
NYTimes: New York Police Faulted by Agency for Unlawful Searches
NYTimes: New York Police Faulted by Agency for Unlawful Searches by Al Baker:
Washington Free Beacon: 2002 Letter Lays Out Bush’s Legal Authority For Conducting Surveillance After 9/11; Yoo letter declassified
Washington Free Beacon: 2002 Letter Lays Out Bush’s Legal Authority For Conducting Surveillance After 9/11 [Yoo letter declassified] by Morgan Chalfant:
Global Research: NSA Spying, Privacy and the Fourth Amendment: The Views of U.S. Presidential Candidates
Global Research: NSA Spying, Privacy and the Fourth Amendment: The Views of U.S. Presidential Candidates by Michael T. Bucci: What are the positions of U.S. presidential candidates on NSA domestic spying, personal privacy and the Fourth Amendment?
CA2: Florence on jail strip searches was an intervening change in law allowing undoing a prior order
Florence v. Board of Chosen Freeholders of County of Burlington was an intervening change in law that permitted the district court to undo a jail strip search class action judgment. In re Nassau County Strip Search Cases, 2016 U.S. App. … Continue reading
NE: Failure to announce entry to execute a misd warrant on ptf’s grandson survived summary judgment; interests rule serves are important
The trial court erred in granting summary judgment for officers who entered plaintiff’s home to arrest her grandson without announcing and with force. A question of fact is presented on the failure to announce, and it serves important interests. The … Continue reading
D.Conn.: As much as everybody hates the “third party doctrine,” it’s still good law, and CSLI accessible by subpoena
The government obtained 22 days of defendant’s CSLI information by subpoena and not search warrant, and, as much as the third party doctrine is despised by the commentators, it remains good law today. United States v. Chavez, 2016 U.S. Dist. … Continue reading
IN: State failed to even attempt to justify inventory; reversed
Defendant was arrested with his car on a parking lot for driving on a suspended DL, and the car had a broken windshield and bumper. The state failed to prove justification for an inventory, and it had the burden. Wilford … Continue reading
WI: Exigency permitted warrantless blood draw of apparent heroin OD, even though he was given antidote
Officers and paramedics were called by friends to a man not breathing in a house. Defendant was found and it had signs of a drug overdose. His blood was drawn to test it, and he was given an injection of … Continue reading
IA: Probation pre-consent to search sex offender’s cell phone was valid
Defendant’s probation search conditions included consent to search his property, and his cell phone was properly searched. “An additional consideration supports our conclusion Barth consented to the search of his cellular phone for non-investigatory purposes. Barth was participating in the … Continue reading
E.D.N.Y.: Losing one’s cell phone at the scene of the crime is a loss of any reasonable expectation of privacy in it
A defendant who loses his cell phone at the scene of a crime has abandoned it by not safeguarding his privacy. This was 2009, and, besides, Riley doesn’t apply to abandoned phones. United States v. Quashie, 2016 U.S. Dist. LEXIS … Continue reading
Cal.2d: Even if Civil Code § 56.26 on medical record privacy had been violated, evidence not excludable in medical disciplinary proceeding
Even if Civil Code § 56.26 on medical record privacy had been violated, it would not exclude evidence in a medical board proceeding for violating billing standards. The subpoena is enforced as limited by time period. Fett v. Medical Bd. … Continue reading
eff.org: A Texas City Rescinds “No Cost” License Plate Reader Deal For Being “Big-Brotherish”
eff.org: A Texas City Rescinds “No Cost” License Plate Reader Deal For Being “Big-Brotherish”:
IA: 911 hang up call justified a police walk through even though occupants said everything was fine
Police received a 911 hang up call, and an officer was dispatched. Outside the home, the smell of burning marijuana was strong. The officer came to the door, was assured everything was alright, but he said he had to check … Continue reading
D.Minn.: When lack of PC for SW is raised, this court looks to whether there was enough for reliance on SW to be objectively reasonable
Defendant argued lack of probable cause for search warrants for two vehicles and a computer, so the court goes first to good faith and analyzes the probable cause through that lens finding that reliance on the warrants with this much … Continue reading
W.D.N.Y.: A dual purpose dog and handler had implied license to enter house on a 911 robbery call
Defendant called 911 to complain that an armed person was trying to break into his apartment. Police arrived, and one had a dual purpose dog. The dog was run around the property looking for the scent of a person, but … Continue reading
D.Utah: EPA administrative SW did not authorize search of def’s residence on the business property
Defendant ran a portable toilet business, and his home was on the property. The EPA suspected him of dumping into a river, and they secured a warrant for the business. They also searched his bedroom, and the EPA had no … Continue reading
W.D.La.: No reasonable expectation of privacy in a stolen car
“Barnes, as the possessor of a stolen vehicle, had no legitimate expectation of privacy in the vehicle. His challenge to the search fails on this ground alone. [¶] In addition, it should be noted that, even if Barnes did have … Continue reading