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- Lawfare: How Google’s Location History Program Could Upend Digital Surveillance Law
- CA6 disagrees with CA7 on de minimis injuries under § 1983 force cases
- MO: No duty of care owed by police to fleeing motorist
- D.P.R.: Indictment for possession of switches to convert handguns to machine guns justified vehicle search when defendant was stopped
- N.D.Ohio: Heroin and three guns in plain view was exigency for entry with child alone inside
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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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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: July 2018
CA2: Def wore GPS for two years for parole, but parole officers turned over monitoring to feds; monitoring not unreasonable
Defendant was on state parole and wore a GPS ankle monitor for two years. Parole turned over monitoring to the feds who monitored him to see what he was doing. The district court suppressed (United States v. Lambus, 251 F. … Continue reading
CA3: What is a “Rodriquz moment” in dicta, not even decided
A long and interesting, albeit ultimately unnecessary, discussion of Rodriquez and what is a “Rodriguez moment.” There was reasonable suspicion on the totality for a longer detention. United States v. Green, 2018 U.S. App. LEXIS 20655 (3d Cir. July 25, … Continue reading
The Atlantic: The FISA Fiasco’s Silver Lining
The Atlantic: The FISA Fiasco’s Silver Lining by April Doss: Recently released documents should put to rest fear that the process of surveilling Americans could be as simple as filling out a form for a perfunctory review.
N.D.N.Y.: Public employer’s prior failure to search work computers under policy didn’t create a REP
Plaintiff did not have a reasonable expectation of privacy in her work issued computers under the school computer privacy policy. The fact they’d never looked before doesn’t otherwise create a reasonable expectation of privacy. Rissetto v. Clinton Essex Warren Wash. … Continue reading
MD: Stop-and-frisk might have been invalid, but def fled and that made it valid
Defendant was arguably subjected to an invalid stop and frisk, but his flight was an intervening circumstance supporting finding the gun. Thornton v. State, 2018 Md. App. LEXIS 716 (July 25, 2018). “The testimony at the suppression hearing demonstrated that … Continue reading
NY2: Murder conviction reversed: state failed to show PC to take def’s DNA
Probable cause was not shown to take defendant’s DNA. “Here, as the People correctly concede, the affidavit of the detective submitted in support of the search warrant application was conclusory and insufficient to establish probable cause to issue the warrant … Continue reading
CA2: In removal proceedings, pet’rs made a prima facie case of egregious 4A violation; remanded
“In removal proceedings before the IJ, both petitioners moved to suppress the evidence obtained during the search, arguing that the search violated the Fourth Amendment because it was conducted without a warrant, consent, or exigent circumstances, and, even assuming the … Continue reading
Lawfare: Carpenter and the End of Bulk Surveillance of Americans
Lawfare: Carpenter and the End of Bulk Surveillance of Americans by Sharon Bradford Franklin:
DE holds that exclusionary rule doesn’t apply to probation revocations
The exclusionary rule does not apply to probation revocation proceedings. No federal case holds to the contrary. Thompson v. State, 2018 Del. LEXIS 346 (July 24, 2018). The city’s administrative warrants for petitioner’s dilapidated buildings were properly issued. By statute, … Continue reading
NJ: Hearsay affidavit for DNA was permissible, but the state failed to show PC
Hearsay related by the affiant for defendant’s DNA sample was constitutionally permissible. Nevertheless, the state failed to show probable cause that defendant’s DNA would be on a gun, and the order denying the DNA sample was properly denied. State v. … Continue reading
CA6: Nexus shown to search def’s house for evidence of his drug deals
Defendant’s drug dealing connections were sufficient to establish nexus to his house. Drug dealers cannot immunize their activities by doing drug deals in parking lots. In any event, the good faith exception applies. United States v. Jenkins, 2018 U.S. App. … Continue reading
Newsweek: Police Are Three Times More Likely to Kill Black Men, Study Finds: ‘Not a Problem Confined to a Single Region’
Newsweek: Police Are Three Times More Likely to Kill Black Men, Study Finds: ‘Not a Problem Confined to a Single Region’ by Scottie Andrew: Police violence and homicide have persistently and disproportionately affected black communities for decades. A new study … Continue reading
Legal Intelligencer: As Genealogy Databases Aid in Crime-Solving, Are Courts Ready to Tackle DNA Privacy?
Legal Intelligencer: As Genealogy Databases Aid in Crime-Solving, Are Courts Ready to Tackle DNA Privacy? by Max Mitchell: The trail of murders and assaults spanning California went unsolved for decades, until investigators turned to a tool more popular with genealogy … Continue reading
D.Nev.: When the govt says it won’t use the product of the search at trial, the motion to suppress is moot, yet def still argues it
The government responded to the initial motion to suppress by saying it wouldn’t use the evidence obtained in the search. The court held the motion was then moot. Defendant pro se then claimed that meant that the officer must have … Continue reading
M.D.Fla.: Disney World’s own fraud investigators conducted private search of hotel room
Walt Disney World’s fraud investigators received a call from American Express that a card was being used fraudulently there. Ultimately, WDW own investigators entered defendant’s room without telling the police what they were doing and found access devices in plain … Continue reading
OR: There was no PC for an administrative seizure of def’s car
The seizure of defendant’s car was without probable cause for an administrative seizure. While her insurance card did not fully comply with the statute, it was fair on its face that it was her and for her cars. State v. … Continue reading
M.D.La.: Leaving one’s garage door open is not a waiver of REP or standing
Defendant’s garage door was left open, and that reduced his reasonable expectation of privacy in it, but that didn’t mean he had no standing. By leaving open the garage, defendant didn’t invite the police in, and exigent circumstances or a … Continue reading
LA Times: Authorities recorded privileged attorney-client conversations, district attorney’s office says
LA Times: Authorities recorded privileged attorney-client conversations, district attorney’s office says by Nina Agrawal: