Archives
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Recent Posts
- OH2: Police responding to report of shot dog who heard an animal had exigency to enter the curtilage
- CA4: Court instructing that the legality of searches were questions for the court wasn’t error
- W.D.N.C.: No REP in a police interview room
- TX2: No SW needed to get IMEI number of an abandoned cell phone to trace the owner
- W.D.Pa.: Affidavit for SW doesn’t have to say CI was reliable when the facts and circumstances alleged showed it
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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: April 2016
W.D.La.: BOLO for a stop in an armed robbery case was not stale after 8 days
When defendant voluntarily stops his car and gets out to walk away, the police encounter after that is not a “traffic stop” governed by traffic stop rules. The stop was consensual, but officers did have reasonable suspicion defendant’s vehicle had … Continue reading
Pacific Legal Foundation: Drones and property rights
Pacific Legal Foundation: Drones and property rights by Raymond Nhan:
Police One: Protecting cops from frivolous lawsuits: Qualified immunity, explained
Police One: Protecting cops from frivolous lawsuits: Qualified immunity, explained by Mike Callahan: The value of the qualified immunity defense to law enforcement officers in use of deadly force cases cannot be understated
SCOTUS approves Rule 41 change permitting SW for remote access of electronic stored data, including “the Cloud”
On April 28th, SCOTUS notified Congress of amendments to F.R.Crim. 41 (also Rules 4 & 45)) to permit searches of remotely stored electronic data–essentially search warrants for the Cloud. The Rule change is effective December 1, 2016. The ACLU’s insightful … Continue reading
E.D.Wis.: 50% owner of business did private search and gave records to IRS
Defendant’s business records were taken by a 50% owner of their business and turned over to the IRS. The government didn’t prompt or suggest the seizure of the records. Once they were turned over, they could be fully reviewed by … Continue reading
WaPo: Only 53 police agencies participating in national push for use of force statistics
WaPo: Only 53 police agencies participating in national push for use of force statistics by Tom Jackman:
SC: There was PC on the totality of the affidavit despite some information being incorrect; affidavit could be supplemented by testimony
There was probable cause on the totality of the information in the affidavit. Some was incorrect, but there was no showing that it was knowingly or recklessly included or material. The affidavit may be supplemented by testimony before the search … Continue reading
NY: Argument can’t be changed between suppression hearing and appeal
The search argument regarding the gun found in the search presented on appeal isn’t the same as the one presented to the suppression court, so it’s waived. (Defendant wins, however, because he was denied confrontation when a DNA analyst who … Continue reading
Reason.com: The Fourth Amendment and the Fruit of the Poisonous Tree (New at Reason)
Reason.com: The Fourth Amendment and the Fruit of the Poisonous Tree (New at Reason) by Reason staff: The USA Freedom Act provides cover for unconstitutional searches of citizens.
D.Kan.: Where USMJ lacks jurisdiction over subject of search or crime, SW void and no GFE
A Maryland USMJ could not issue a search warrant for email where there was no indication that the child pornography offense occurred in that jurisdiction. The email user was in another state as was gmail. Therefore, there was a lack … Continue reading
The Fourth Amendment in the Information Age by Robert S. Litt, Yale L.J.
The Fourth Amendment in the Information Age by Robert S. Litt, 126 Yale L.J. __:
D.Ariz.: Def’s apparently grabbing a package launched over the border fence was RS
Border Patrol officers at Nogales watching over the border saw a launching device to throw bundles over the border fence, and they tried to see where the packages landed to round them up. Defendant was seen matching the description of … Continue reading
D.D.C.: Staleness for a wiretap follows the same general rule as staleness for search warrants except it’s to find evidence of conspiracy
Staleness for a wiretap follows the same general rule as staleness for search warrants except that the question is probable cause to believe that the content of telephone calls will help prove the conspiracy. United States v. Ford, 2016 U.S. … Continue reading
VT: Broad computer monitoring condition of a sex offender on probation had to be narrowed
A computer monitoring and internet bar probation condition of a convicted sex offender was modified to better match his circumstances. He can have access to the internet, and, on reasonable suspicion, the PO can search his computer. State v. Cornell, … Continue reading
MT: Pretext or subjective intent in a parole search is irrelevant
The subjective intent of the officers conducting a parole search for whether it is really a criminal investigative search is irrelevant. State v. Crawford, 2016 MT 96, 2016 Mont. LEXIS 280 (April 26, 2016):
The Intercept: Email Privacy Bill Passes House Unanimously
The Intercept: Email Privacy Bill Passes House Unanimously by Jenna McLaughlin: The House voted unanimously, 419-0, on Wednesday to bring the law that protects the privacy of Americans’ e-mails into the 21st century. The Email Privacy Act would reform the … Continue reading
Cal.3d: When stopping a car and a second one stops, too, it was reasonable to order occupants out of second car
One vehicle was being stopped in a driveway, but another was between the police car and the target car. The officers could reasonably get the occupants out of the car in between so they could know what they were dealing … Continue reading
CA11: Luggage dog alerts to on interstate bus is subject to automobile exception
Defendant was apparently a regular passenger on El Expreso bus traveling from Florida to Texas and back. Intel briefings told him that heroin was being concealed in large cans of food. Defendant had a large can of food in his … Continue reading
W.D.Okla.: Ping order not subject to exclusionary rule under ECPA
A cell phone ping order allegedly in violation of ECPA was not subject to suppression. The warrantless entry into the house was justified by exigent circumstances. United States v. Banks, 2016 U.S. Dist. LEXIS 53876 (W.D.Okla. April 22, 2016). The … Continue reading