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Recent Posts
- CA7: Jail officials holding ptif under a valid court order aren’t liable for not releasing him sooner after a sentencing error
- Volokh: Do Fourth Amendment Protections Change When Property Is Moved?
- 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
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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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"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 2017
M.D.Fla.: Def failed to show equitable right to return of property under 41(g) while he’s in jail
Defendant failed to make a showing for equitable relief for return of property under Rule 41(g) while he’s in jail. United States v. Rehaif, 2017 U.S. Dist. LEXIS 61019 (M.D. Fla. April 4, 2017):
S.D.N.Y.: Issue preclusion: Same search litigated in NJ state courts in 2014 and def lost; can’t relitigate here. Besides, he’d lose on merits, too
Defendant was charged in New Jersey as a result of the same search as here. He fully litigated in state court and lost, and appealed and lost. That qualifies for issue preclusion in federal court in NYC because he had … Continue reading
IA: Where IAC claims based on persuading for overruling of settled law, def counsel hardly ineffective
Defendant’s argument on post-conviction that defense counsel should have argued for overruling of state authority on the search incident and automobile exception doctrines because of subtle changes in the law isn’t grounds for post-conviction. All that shows is that the … Continue reading
Yahoo! Tech: A Former NSA Lawyer Explains Why Searching Phones at the Border Is a Waste of Time
Yahoo! Tech: A Former NSA Lawyer Explains Why Searching Phones at the Border Is a Waste of Time by Brian Feldman
Arkansas Times: State spends $30,000 drug testing TANF recipients for drugs, nabs 2
Think Progress: States spend millions to drug test the poor, turn up few positive results by Josh Isreal (“They spent $1.3 million to find just 369 drug users.”) My own state: Arkansas Times: State spends $30,000 drug testing TANF recipients … Continue reading
WaPo: Why it matters that Google Home can now identify you by voice
WaPo: Why it matters that Google Home can now identify you by voice by Hayley Tsukayama: Consumers should also think about how this information could be used outside of the company, Shear said. He pointed to a recent murder case … Continue reading
N.D.Cal.: Google mail stored overseas but only accessible from U.S. subject to SW here
The Stored Communications Act can apply extraterritorially when the data is stored overseas but it can only be accessed from Google here in the U.S. In re Search of Content that is Stored at Premises Controlled by Google, 2017 U.S. … Continue reading
WaPo: Civil Rights Attorneys Raise Concerns About NYPD Body-Camera Program
WaPo: Civil Rights Attorneys Raise Concerns About NYPD Body-Camera Program by Zolan Kanno-Youngs: Policy gives officers too much discretion for when to activate devices, police-reform advocates say
CA4: Inventory would happen so that’s inevitable discovery
The discovery of the contraband was by inevitable discovery because an inventory was going to occur in any event. The fact the policy wasn’t written isn’t determinative as long as it is reasonable. United States v. Bullette, 2017 U.S. App. … Continue reading
CA5: Arrest w/o PC can be retaliatory for refusing to answer questions at stop w/o RS
Plaintiff claimed he was arrested, handcuffed, and shackled simply for refusing to give his name and answer questions when he was stopped in a hotel parking lot apparently solely because of the officer’s curiosity. [At least plaintiff so plead because … Continue reading
C.D.Ill.: Long term borrower of car has standing
One who borrows a car for a long time has standing. “And the Court is persuaded that society is prepared to accept as reasonable a person’s subjective expectation of privacy in a car borrowed for months on end from a … Continue reading
D.Nev.: Def’s unsupported allegation judge didn’t sign SW overcome by officer’s testimony
Defendant’s unsupported testimony that the search warrant does not appear to have a judge’s original signature on it fails in the face of testimony from the officer that he saw the judge sign it. The fact it took 120 days … Continue reading
CA2: Open container violation supports SI
Open container violation in NYC supported a search incident to an arrest. The officer was first going to issue a summons but did a patdown and arrested when the gun was found. United States v. Diaz, 2017 U.S. App. LEXIS … Continue reading
CA2: Def’s attempted flight from a stop added to the RS
Officers were on a drug stakeout and saw the defendant watching the street, although there were no cars. He went in a building and came out with a plastic bag with a brick shaped object in the bottom. Officers tried … Continue reading
OH8: Being legally parked in a “high gang area” is not reasonable suspicion
Being legally parked in a “high gang area” is not reasonable suspicion. State v. Jackson, 2017-Ohio-1369, 2017 Ohio App. LEXIS 1420 (8th Dist. April 13, 2017). Fake drugs were substituted for the real thing in a delivery to a house … Continue reading
D.P.R.: Just being a driver of vehicle doesn’t give standing; two traffic tickets in past in vehicle not enough
Defendant at the suppression hearing showed no possessory interest in the vehicle he claimed not to own at the time of the stop and search. Two traffic tickets in the past driving the same vehicle wasn’t enough. United States v. … Continue reading
WaPo: D.C. appeals court poised to rule on whether police need warrants for cellphone tracking
WaPo: D.C. appeals court poised to rule on whether police need warrants for cellphone tracking by Tom Jackman: Last year, a Maryland appeals court agreed and ruled that Baltimore police could not use evidence collected by a cell-site simulator in … Continue reading