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Recent Posts
- W.D.Wash.: DNA warrant isssued with PC not quashed before execution
- S.D.Ohio: Defense of denial of possession in drug case meant no assertion of standing to challenge the search, so no IAC
- N.D.Okla.: Anticipatory tracking warrant for money counter is without authority and nexus is speculative even if not
- CA9: Supervised release condition of financial disclosure permitted under 18 U.S.C. § 3553(a) and didn’t violate 4A
- N.D.Ohio: Refusing discovery on 4A grounds in forfeiture case results in no standing
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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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Congressional Research Service:
--Electronic Communications Privacy Act (2012)
--Overview of the 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
S.D.Ohio: Riley‘s cell phone SW requirement doesn’t apply to probation searches of a cell phone
Riley does not require a warrant for a probation search of a probationer’s cell phone. United States v. Fletcher, 2018 U.S. Dist. LEXIS 65591 (S.D. Ohio Apr. 18, 2018). Officers had probable cause to search the trunk of a car … Continue reading
OH9: “Counsel’s decision not to pursue every possible angle [in a suppression motion] is not ineffective assistance.”
“Counsel’s decision not to pursue every possible angle [in a suppression motion] is not ineffective assistance.” State v. Palmer, 2018-Ohio-1486, 2018 Ohio App. LEXIS 1631 (9th Dist. Apr. 18, 2018). Defendant’s swerving vehicle and trailer provided reasonable suspicion for a … Continue reading
D.Minn.: Citizen informant wasn’t material witness under Roviaro
A citizen informant who called police to say that a store video shown on the news looked like defendant wasn’t a material witness at trial under Roviaro. The government wasn’t calling the person, and defendant didn’t show a reason to. … Continue reading
W.D.Ky.: Drug dog sticking his nose into defendant’s car was instinctual and wasn’t caused by the police
A drug dog sticking his nose into defendant’s car was instinctual and wasn’t caused by the police, following United States v. Sharp, 689 F.3d 616 (6th Cir. 2012). United States v. Miles, 2018 U.S. Dist. LEXIS 66899 (W.D. Ky. Apr. … Continue reading
NE: A motion in limine is not a substitute for a motion to suppress
“A suppression hearing is preparatory, because it relates to auxiliary issues not immediately relevant to the question of guilt and is held in anticipation of certain evidence being introduced at a forthcoming trial.” A motion in limine is not a … Continue reading
The Crime Report: Facial Recognition Software: Coming Soon to Your Local Retailer?
The Crime Report: Facial Recognition Software: Coming Soon to Your Local Retailer? by Nick Coult: Shoplifting is harmless, right? It’s nothing more than a victimless petty crime. Besides, it doesn’t really hurt the retailers because they just write off their … Continue reading
CAAF: Inevitable discovery and lack of bad faith saved AFOSI’s exceeding scope of search authorization
AFOSI officers exceed the military search authorization which omitted defendant’s bags. They’d sought a search of the bags and it was within the confines of the affidavit. There was no bad faith, and they were actively investigating pursuing leads on … Continue reading
N.D.Cal.: Lyft drivers didn’t state a claim for invasion of privacy from taking of geolocation data that was shared on an app
Plaintiff Lyft drivers sued Uber for invasion of privacy and other claims. Plaintiff did not state an invasion of privacy claim from using an app on their phone that tracked them. He didn’t have a reasonable expectation of privacy in … Continue reading
D.N.M.: RS can start as one thing and become something else
An officer on regular patrol saw defendant peering in a church window when there were no services. The officer stopped to inquire and defendant’s activity turned to suspicious for possessing a weapon. Reasonable suspicion can shift from one thing to … Continue reading
New law review article: Notice and Standing in the Fourth Amendment: Searches of Personal Data
Jennifer Daskal, Notice and Standing in the Fourth Amendment: Searches of Personal Data, 26 Wm. & Mary Bill Rts. J. 437 (2017). Abstract:
S.D.N.Y.: Parole search was valid despite def being in jail at time
Defendant was on parole and allegedly shot at somebody. That justified a parole search of his residence. The fact he was in jail at the time didn’t matter. United States v. Jaiman, 2018 U.S. Dist. LEXIS 64797 (S.D. N.Y. Apr. … Continue reading
The Reporter: Columnist: Answers to privacy concerns depend on philosophical approach
The Reporter: Columnist: Answers to privacy concerns depend on philosophical approach by Richard Bammer:
CSO Online: Cops go into funeral home, attempt to unlock phone with dead man’s fingerprint
Not the first time, and certainly not the last: CSO Online: Cops go into funeral home, attempt to unlock phone with dead man’s fingerprint by Ms. Smith: Even if the cops can’t be legally accused of violating a dead man’s … Continue reading
E.D.Cal.: Alleged search of a public computer in a library for ptf’s usage didn’t violate any REP
Alleged search of a public computer in a college library for information about plaintiff’s use of it doesn’t violate any reasonable expectation of privacy. Berry v. Yosemite Cmty. College Dist., 2018 U.S. Dist. LEXIS 64732 (E.D. Cal. Apr. 17, 2018). … Continue reading
W.D.N.Y.: “Affidavit of personal knowledge” to show standing isn’t satisfied by the officer’s police reports
The Second Circuit requires an affidavit of personal knowledge to establish standing to contest a search. The officer’s report wasn’t enough just because the officer believed that defendant’s residence was the target of the search. United States v. Lewis, 2018 … Continue reading
D.Mass.: Def made his Franks challenge at the suppression hearing; statement was reckless and completely undermined nexus to house
Defendant showed enough to get a Franks hearing. United States v. Roman, 2017 U.S. Dist. LEXIS 167167, 2017 WL 4517963 (D. Mass. Oct. 10, 2017). “Following the Franks hearing—which occurred on multiple days spread out between November of 2017 and … Continue reading
IN: Recording a recording off a Facebook account doesn’t violate the federal wiretap law
Defendant was accused of breaking into his ex-girlfriend’s apartment and stealing her work iPad and other personal things. She signed on to his Facebook account with a password he’d previously given her. She found a recording there which admitted he … Continue reading
WaPo: Opinion: ‘The Watch’ blog: Lunch links: Louisiana attorney general approves of arresting people who threaten to file police complaints
WaPo: Opinion: ‘The Watch’ blog: Lunch links: Louisiana attorney general approves of arresting people who threaten to file police complaints by Radley Balko:
NJ: DV seizure order and SW issued; dismissal of DV matter doesn’t affect independent SW
Family court DV search warrant was adequate and helped support an additional search warrant by the criminal court. There was probable cause. The ultimate dismissal of the DV petition had no legal effect on the validity of the search warrant. … Continue reading
DE: “The scope of the warrant so far outruns that probable cause finding—and is so lacking in particularity relative to that probable cause finding—that it qualifies as plain error.”
A rare outcome: “The scope of the warrant so far outruns that probable cause finding—and is so lacking in particularity relative to that probable cause finding—that it qualifies as plain error.” Buckham v. State, 2018 Del. LEXIS 166 (Apr. 18, … Continue reading