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- W.D.Ark.: Parole search waiver moots lack of PC argument
- AR: RS shown for boating while intoxicated stop
- W.D.Mo.: Wrong address in SW wasn’t fatal where right house was searched
- NY: Failure to show independent source for officer’s observation of def required reversal
- VA: Outline of a gun in def’s pocket was RS
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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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--Electronic Communications Privacy Act (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: March 2018
NYLJ: Swarms of Drones: Collecting Data and Delivering Potential Liabilities
NYLJ: Swarms of Drones: Collecting Data and Delivering Potential Liabilities by Paul B. Keller:
ND: Hot pursuit into a garage to make an arrest was reasonable
Hot pursuit into a garage to make an arrest was reasonable. City of Bismarck v. Brekhus, 2018 ND 84, 2018 N.D. LEXIS 88 (Mar. 22, 2018). Defendant’s second post-conviction petition was essentially an attempt to relitigate his first one on … Continue reading
W.D.N.Y.: SW was for drugs; a gun found was in plain view
The search warrant was for drugs and a gun was found. Guns are instruments of the drug trade. The warrant otherwise being valid, the finding of the gun was essentially in plain view. United States v. Pizarro, 2018 U.S. Dist. … Continue reading
Daily Beast: New Facebook-Backed Law Would Let Foreign Governments Get Your Data Without a Warrant
Daily Beast: New Facebook-Backed Law Would Let Foreign Governments Get Your Data Without a Warrant by Spencer Ackerman:
Just Security: Opinion: Congress Should Place More Limits on Cellphone Location Tracking After Carpenter
Just Security: Opinion: Congress Should Place More Limits on Cellphone Location Tracking After Carpenter by by Jake Laperruque:
NYTimes: Opinion: How Democracy Can Survive Big Data
NYTimes: Opinion: How Democracy Can Survive Big Data by Colin Coopman: An adequate ethics of data for today would include not only regulatory policy and statutory law governing matters like personal data privacy and implicit bias in algorithms.
NYTimes: Justice Dept. Revives Push to Mandate a Way to Unlock Phones
NYTimes: Justice Dept. Revives Push to Mandate a Way to Unlock Phones by Charlie Savage: Federal law enforcement officials are renewing a push for a legal mandate that tech companies build tools into smartphones and other devices that would allow … Continue reading
CA10: Carelessly unloading watermelons from a box truck away from a loading dock and in middle of night with “nonsensical” answers was PC
Officers had probable cause to search defendants’ box truck. They were unloading watermelons in the middle of the night on wet grass and not at some loading dock coupled with all the unusual, vague, and even “nonsensical” excuses for why … Continue reading
WA: Second SW for records already produced was independent source; exclusionary rule won’t be applied
Verizon produced phone records under a court order, that later was determined to be invalid. A second order was issued for the same records. Verizon didn’t produce those records the second time because the first had been produced and they … Continue reading
ND: “Constructive possession of drug paraphernalia is sufficient probable cause to arrest.”
“Constructive possession of drug paraphernalia is sufficient probable cause to arrest.” State v. Terrill, 2018 ND 78, 2018 N.D. LEXIS 89 (Mar. 22, 2018). Ordering defendant out of his vehicle was reasonable even in a stop for overtinted windows. The … Continue reading
AppleInsider: Apple-supported CLOUD Act passes Congress, will change how governments share data
AppleInsider: Apple-supported CLOUD Act passes Congress, will change how governments share data by Stephen Silver:
CO: The oil and gas industry is “closely regulated” for 4A purposes
The Colorado Oil and Gas Conservation Commission gas well inspection program is constitutional. It provides for unannounced inspections. The court concludes that the oil and gas industry is “closely regulated” for Fourth Amendment administrative inspection law. Maralex Resources, Inc. v. … Continue reading
CA7: State’s use of state’s “John Doe” proceedings was shown to be in good faith
In the court’s second view of Wisconsin’s unique John Doe proceedings, the Seventh Circuit decides only the good faith exception and concludes that the reliance on state law and compliance with the Stored Communications Act was all in good faith. … Continue reading
CA7: Ptfs allege enough to survive judgment on the pleadings of a race-based search
Plaintiffs alleged enough to get past motion for judgment on the pleadings that they were searched based on their race. “The complaint filed by Vanessa Enoch and Avery Corbin alleges that they were taking photographs and making video recordings at … Continue reading
W.D.Okla.: State habeas direct 4A attack on conviction barred
This habeas petition directly attacked the state search and seizure and that’s barred by Stone v. Powell. West v. Bryant, 2018 U.S. Dist. LEXIS 47497 (W.D. Okla. Mar. 23, 2018).* State habeas petitioner’s effort for a successor habeas petition is … Continue reading
S.D.Cal.: San Diego strip club inspection ordinance violates 1A; 4A deferred for more development
San Diego has an ordinance permitting inspections of strip clubs. After an “inspection” with armed officers with bulletproof vests to photograph nearly nude dancers ostensibly to log their tattoos, the court finds the ordinance violates the First Amendment because it … Continue reading
NYLJ: Time to End Qualified Immunity?
NYLJ: Time to End Qualified Immunity? by Ilann M. Maazel: Civil Rights Litigation columnist Ilann M. Maazel writes: Qualified immunity is often asserted and litigated in §1983 cases. But some conservative scholars now argue that the doctrine is lawless. This … Continue reading
The Crime Report: Can Alexa Testify Against You?
The Crime Report: Can Alexa Testify Against You? by Julia Pagnamenta As Amazon actively looks for new ways to expand Alexa’s functions, the risks for privacy violations increase exponentially as well.