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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: April 2018
CA11: There is no adverse inference as a matter of law from failure to maintain audio of stop
Because the exclusionary rule is a “last resort,” on plain error review, defendant cannot claim error for the failure of the district court to determine that his version of the facts is more credible than the governments. There is no … Continue reading
Volokh Conspiracy: Suspect Can Be Compelled to Decrypt Devices If Government Proves He Has The Ability To Do So, Court Rules
United States v. Spencer, 2018 U.S. Dist. LEXIS 70649 (N.D. Cal. Apr. 26, 2018) Volokh Conspiracy: Suspect Can Be Compelled to Decrypt Devices If Government Proves He Has The Ability To Do So, Court Rules by Orin Kerr: The right … Continue reading
Fortune: Police Body Cameras Could Get Facial Recognition Technology
Fortune: Police Body Cameras Could Get Facial Recognition Technology by Lisa Marie Segarra:
AP: Earlier search for Golden State Killer led to wrong man
AP: Earlier search for Golden State Killer led to wrong man by Michael Balsamo and Jonathan J. Cooper with Frank Stoltze:
D.Md.: After 4A claim affirmed on appeal, 2255 isn’t available to litigate the merits
No, the defendant doesn’t get to continue litigating his Fourth Amendment claim into infinity by going to 2255 after loosing the appeal. White v. United States, 2018 U.S. Dist. LEXIS 70628 (D. Md. Apr. 26, 2018):
IN: Def slumped over steering wheel in hospital parking lot justified look in car based on emergency aid exception
A deputy sheriff was doing off-duty security work at a hospital same day surgery parking lot when he saw the defendant slumped over his steering wheel, the door open, and the engine off. When the officer turned on his take … Continue reading
AL: There is no REP in a LPN on a vehicle
There is no reasonable expectation of privacy in a license plate, and the Fourth Amendment doesn’t prohibit running the tags for any reason. State v. Abrams, 2018 Ala. Crim. App. LEXIS 24 (Apr. 27, 2018). The government obtained internet routing … Continue reading
NY4: Def’s actions supported PC for a body SW
Officers executing a search warrant saw defendant acting like he had something hidden in the back of his pants. Defendant’s squirming and clenching his butt strongly suggested to the officer that he had drugs hidden in his rectum. The search … Continue reading
PA: “Reason to believe” in Payton and Steagald means probable cause
“Reason to believe” in Payton and Steagald means probable cause. It cannot constitutionally be less and be faithful to the protection of the home from unreasonable invasions. This case includes a thorough discussion of both cases and their constitutional requirements. … Continue reading
W.D.Va.: Use of a summons under 19 U.S.C. § 1509 to obtain information to prosecute defendant for CP doesn’t violate 4A
The government used a summons under 19 U.S.C. § 1509 to obtain information to prosecute defendant for child pornography. Use of § 1509 didn’t violate the Fourth Amendment, and there’s no exclusionary rule for violation anyway. Defendant’s claim that the … Continue reading
E.D.Mich.: No PC for nexus to def’s house, and no GFE
The affidavit failed to show probable cause for nexus to defendant’s house. It was so devoid of probable cause that the good faith exception does not apply. United States v. Myles, 2018 U.S. Dist. LEXIS 69373 (E.D. Mich. Apr. 25, … Continue reading
E.D.N.Y.: Def’s search incident of his backpack for fraudulent use of a Metrocard was valid at least on GFE and inevitable discovery
Defendant was stopped for using a school student’s Metrocard to get on the NYC subway because he looked and was a so older. His backpacked was removed, and he was handcuffed. His backpack was searched incident to his arrest. The … Continue reading
CA8: Parked RV was “vehicle on the premises” even though connected to water and electricity
A parked RV qualified as a “vehicle on the premises” even though it would have taken 30 minutes to make it ready to move. It had a satellite dish on the roof and it was connected to water and electricity. … Continue reading
AR: State’s failure to get ruling on GFE below bars that argument on appeal; statute on BAC penalties violates Birchfield
Arkansas’s refusal to submit to a BAC test has criminal penalties, and it violates the Fourth Amendment. The trial court’s finding of voluntary consent was decided without an evidentiary hearing and is clearly erroneous. The state’s failure to get a … Continue reading
CA5: Search of wrong house by inadequate investigation means no QI
It was clearly established that search of the wrong house because of inadequate investigation violated the Fourth Amendment. Gerhart v. Barnes, 2018 U.S. App. LEXIS 10626 (5th Cir. Apr. 26, 2018), prior opinion Gerhart v. McLendon, 2017 U.S. App. LEXIS … Continue reading
Two on protective sweep
On plain error review, the protective sweep was reasonable. The officers had information that a suggested second person could have been in the house, and he or she hadn’t been found or found not to exist. United States v. Ford, … Continue reading
E.D.Mich.: Affidavit for SW failed to show nexus, but GFE was enough to save it
“The bare assertion that defendant departed his home prior to engaging in a drug transaction does not ‘directly connect the residence with the suspected drug dealing activity.’ Id.” Peffer, 880 F.3d at 272-73 (quoting Brown, 828 F.3d at 383-84). The … Continue reading
techdirt: Appeals Court: Driving Attentively While Black Isn’t Probable Cause For A Traffic Stop
techdirt: Appeals Court: Driving Attentively While Black Isn’t Probable Cause For A Traffic Stop by Tim Cushing:
Reason.com: The Golden State Killer and Your Genetic Privacy
Reason.com: The Golden State Killer and Your Genetic Privacy by Ronald Bailey “Any right of privacy in commercial DNA testers?” This was inevitable.