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- W.D.Ark.: Parole search waiver moots lack of PC argument
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- NY: Failure to show independent source for officer’s observation of def required reversal
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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)
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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: August 2016
CA3: Pretrial restrictions and order to appear are a seizure, adopting Justice Ginsburg’s Albright concurrence
A person under pretrial restrictions and ordered to appear (not merely summoned) is “seized” under the Fourth Amendment. The court adopts Justice Ginsberg’s Albright concurrence. Black v. Montgomery County, 2016 U.S. App. LEXIS 15997 (3d Cir. Aug. 30, 2016):
D.Minn.: IP address used in P2P internet CP downloads linked to def’s one-family address was PC for SW for the computers in that house
IP address used in P2P internet child pornography downloads linked to defendant’s one-family address was probable cause for a search warrant for the computers in that house. United States v. Wylie, 2016 U.S. Dist. LEXIS 113669 (D.Minn. July 18, 2016), … Continue reading
S.D.Ala.: That Alabama ABC officers didn’t state authority to make a traffic stop isn’t a 4A issue
Defendant was pulled over by state ABC officers. His claim that they lacked authority to do so under Alabama law doesn’t apply in federal court. That’s his only ground, so motion to suppress denied. United States v. Henry, 2016 U.S. … Continue reading
W.D.Pa.: Standards for credibility determinations
How the court makes credibility determinations, and these officers are credible. United States v. Brounson, 2016 U.S. Dist. LEXIS 112352 (N.D. Ga. May 23, 2016), adopted 2016 U.S. Dist. LEXIS 112278 (N.D. Ga. Aug. 23, 2016):
WaPo: The Watch: For nine years, DEA withholds names of masked agents who violently raided two innocent women. Federal court shrugs
WaPo: The Watch: For nine years, DEA withholds names of masked agents who violently raided two innocent women. Federal court shrugs. by Radley Balko: The Burley sisters say they were raided, roughed up and verbally abused, but because they can’t … Continue reading
cato.org: The Weird World of Data (and Your Privacy)
cato.org: The Weird World of Data (and Your Privacy) by Jim Harper: In 2007, Judge Richard Posner found it “untenable” that attaching a tracking device to a car is a seizure. But the Supreme Court struck down warrantless attachment of … Continue reading
cato.org: ‘Pre-Search’ Is Coming to U.S. Policing
cato.org: ‘Pre-Search’ Is Coming to U.S. Policing by Jim Harper: News that the city of Baltimore has been under surreptitious, mass-scale camera surveillance will have ramifications across the criminal justice world. When it comes to constitutional criminal procedure, privacy, and … Continue reading
Seattle Times: FBI’s massive porn sting puts internet privacy in crossfire
Seattle Times: FBI’s massive porn sting puts internet privacy in crossfire by Mike Carter: The FBI snared scores of people after taking over a child-pornography bulletin board and conducting a sting and computer-hacking operation. But there is a growing social … Continue reading
W.D.Pa.: Momentary compliance with officer’s commands then flight is not a seizure
Momentary compliance with an officer’s commands is still not a seizure under Hodari D. when defendant flees after that. United States v. Brown, 448 F.3d 239, 246 (3d Cir. 2006)). United States v. Ridgeway, 2016 U.S. Dist. LEXIS 111537 (M.D.Pa. … Continue reading
N.D.Cal.: Lessee of car had standing: “Her actions evinced a possessory interest in the vehicle and its contents”
“The Court finds Defendant had an expectation of privacy because she was the lessee of the rental car. … Although there is some dispute as to whether Defendant renounced control over the car, the Court finds that Defendant’s possessory interest … Continue reading
Marijuana.com: New Mexico: Pot Pilfering Cop Caught Stealing Weed by Personal Body Camera
Marijuana.com: New Mexico: Pot Pilfering Cop Caught Stealing Weed by Personal Body Camera by Monterey Bud
W.D.La.: Postal workers have no REP in containers in postal buildings
Postal worker who left personal stuff in an unlocked locker had no reasonable expectation of privacy in it. Postal workers knew that they were subjected to searches of their belongings and containers on postal service property. United States v. Cluse, … Continue reading
CO: Motorist seeking aid can be required to submit to patdown w/o RS to get into police car
A motorist who sought assistance, and without reasonable suspicion, can be required to be patted down before the motorist gets in the police car. People v. Gow, 2016 COA 119, 2016 Colo. App. LEXIS 1176 (Aug. 25, 2016), op. mod. … Continue reading
CADC: Executing daytime warrant at night was unreasonable and a violation of the 4A
Executing a daytime warrant at night violated clearly established law and was unreasonable and a violation of the Fourth Amendment. Jones v. Kirchner, 2016 U.S. App. LEXIS 15759 (D.C.Cir. Aug. 26, 2016). This warrant provided: YOU ARE HEREBY COMMANDED to … Continue reading
AR: While SW must be issued on affidavit or recorded testimony, questions about no-knock didn’t have to be recorded, especially when no-knock refused
Search warrants must be issued on affidavits or recorded testimony. The issuing judge asked questions about the no-knock entry, and this was separate from probable cause finding. This did not have to be recorded. Besides, the judge denied the no-knock … Continue reading
The Hill: Feds brace for new drone rules to take flight
The Hill: Feds brace for new drone rules to take flight by Melanie Zanona: The Federal Aviation Administration (FAA) is preparing for a swarm of drone applications when the first ever rule permitting small, routine drone flights goes into effect … Continue reading
CA2: Even if defendant’s stop violated the Fourth Amendment, his assault on the officer not suppressed
Even if defendant’s stop violated the Fourth Amendment, his assault on the officer would not be suppressed. United States v. Jenkins, 2016 U.S. App. LEXIS 15539 (2d Cir. Aug. 24, 2016). Defendant’s 2255 claim seems to be that the government … Continue reading