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Recent Posts
- CA5: Even if parole search was to aid criminal investigation, it was still reasonable
- IN: Cell phone linked to murder by TM sent before; PC for search
- C.D.Cal.: Inquiry into actions of others besides the officers involved in search is a new Bivens claim and barred
- D.Minn.: Regular CI had “extensive knowledge of street gangs, firearms, and narcotics distribution”; there was 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,
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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: May 2017
IL: “Immediately apparent” for plain view really means “probable cause”
Product bar codes found in plain view in defendant’s car were seized with probable cause. Officers experienced in investigating retail theft from a Best Buy were investigating thefts that involved altered bar codes. “Immediately apparent” for plain view really means … Continue reading
M.D.Fla.: Unauthorized driver of rented car with suspended DL had no REP in car even if driving with permission of renter
Defendant had a subjective reasonable expectation of privacy in a rental vehicle he was driving with permission of the renter and potentially the implicit permission of the rental company because he was seen in it by them. [Whether they knew … Continue reading
W.D.Mo.: Driveway not curtilage for dog sniff of car
Relying on United States v. Beene, 818 F.3d 157 (5th Cir. 2016) (posted here), defendant’s car parked on the driveway in front of his home was subject to a dog sniff as if it was on the street. Because of … Continue reading
SCOTUS: Co. of LA v. Mendez: No constitutional basis for the Ninth Circuit’s “provocation” rule that an officer’s conduct that provokes a violent response is a separate Fourth Amendment claim
There is no constitutional basis for the Ninth Circuit’s “provocation” rule that an officer’s conduct that provokes a violent response is a separate Fourth Amendment claim. County of Los Angeles v. Mendez, 2017 U.S. LEXIS 3396 (U.S. May 30, 2017). … Continue reading
N.D.Cal.: It’s not for LEO to second guess a probation search condition’s validity or application
If the probation search condition applies on its face, and even if the search is for general law enforcement purposes, it’s not for the searching officer to inquire into the details of whether there might be some argument behind the … Continue reading
N.D.W.Va.: Officers arrived at an injured person call, and the assailant wasn’t around; protective sweep permissible
“Here, the officers arrived to a chaotic scene. The Defendant was severely injured after being hit by a bottle. There were at least two other individuals present. The Police were told the assailant, who had demonstrated his violent nature, was … Continue reading
TN: Blood draw without consent was valid at the time it happened; therefore valid
Obtaining defendant’s blood draw without consent was a practice authorized by binding appellate precedent at the time it occurred. Therefore, the denial of defendant’s motion to suppress was appropriate because the officer was acting under a good faith belief that … Continue reading
W.D.Va.: Misstatement of crack v. powder cocaine wasn’t Franks violation
In a 2255 case, it wasn’t ineffective assistance for defense counsel to fail to make a Franks challenge to a misstatement of crack v. powder cocaine in a search warrant application. United States v. Moyer, 2017 U.S. Dist. LEXIS 79279 … Continue reading
D.P.R.: Parents lacked apparent authority to consent to adult child’s room
The government failed to prove common authority by the consenter, defendant’s mother, for a search of the adult defendant’s separate bedroom. Common authority is far more readily found when the child is a minor, but not when the child is … Continue reading
IA: While Iowa doesn’t recognize anticipatory warrants by statute, a federal anticipatory SW that ended up in state court was valid
“The defendant now appeals, arguing among other things that Iowa’s search warrant statutes do not authorize anticipatory warrants. We agree, but hold that where the federal government conducts a search pursuant to a valid federal search warrant for purposes of … Continue reading
FISA judge finds five years of illegal surveillance of some U.S. persons, but it wasn’t willful; remedial measures required; still, 4A not violated
McClatchy: Secret court rebukes NSA for 5-year illegal surveillance of U.S. citizens by Tim Johnson: U.S. intelligence agencies conducted illegal surveillance on American citizens over a five-year period, a practice that earned them a sharp rebuke from a secret court … Continue reading
OH8: Citizen’s warning of sobriety checkpoints in Parma, Ohio was protected speech and not obstruction of governmental business
Defendant’s actions of having a sign and warning people of a sobriety checkpoint did not amount to obstruction of official business, so his arrest was unjustified. Ohio practice requires the police to warn of sobriety checkpoints, too. City of Parma … Continue reading
FL4: Just being on somebody else’s property is not RS of a crime without more; telling def to “stand by” is a seizure
Defendant’s friends saw a police officer coming and all walked away. Defendant did not. That did not mean that when the encounter started, defendant was free to leave. On this record, he was not, and it was a detention without … Continue reading
E.D.Mich.: Undercover officers entering public areas of a strip club as customers not a search
First undercover officers and then other officers entered plaintiff’s strip club to investigate alleged misdeeds inside. No warrant was needed under Macon because the parts of the club entered by the officers were open to the customers. ABECE Operating v. … Continue reading
NYTimes: Body Cameras, Long Distrusted, Now Help Show ‘Human Side of the Badge’
NYTimes: Body Cameras, Long Distrusted, Now Help Show ‘Human Side of the Badge’ by Julie Bosman: Law enforcement’s use of body-worn cameras has expanded around the country, largely in response to high-profile civilian deaths at the hands of officers and … Continue reading
CA8: A 1 in 11 chance homeowner had CP on computer was enough for qualified immunity; search turned up nothing and he lost job then home
Child pornography was able to be downloaded from plaintiff’s IP address, so Minot police got a search warrant for plaintiff’s address, which appeared to be a single family dwelling. When they got there, however, they learned that 11 people lived … Continue reading
A.F.Ct.Crim.App.: Request for phone password after signed consent to search phone after Miranda warning not interrogation
Defendant had consented to a search of his cell phone in writing. He’d been Mirandized and then was asked for the passcode, which he gave. The request (not an order) for the passcode, was not an interrogation. United States v. … Continue reading