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- Volokh: Do Fourth Amendment Protections Change When Property Is Moved?
- M.D.Pa.: Def was neither shipper nor recipient of USPS parcel, so he had no standing in it
- WI: Obtaining def’s DNA by ruse wasn’t an illegal search
- WaPo: Apple, Google and Venmo fight new U.S. plan to monitor payment apps
- CA4: Tracking order using cell site simulator with PC was reasonable
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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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--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: August 2018
CA7: Searching wrong apt on ambiguous SW (apt 1 where there were 1A & 1B) gets qualified immunity here
When the officer arrived at plaintiff’s address with a search warrant for apartment 1, he instead found apartments 1A and 1B. The officers attempted to clear up the ambiguity before the search, and they searched 1A finding nothing, and the … Continue reading
N.D.W.Va.: A motion to suppress isn’t moot just because the govt says it won’t use the evidence in its case-in-chief; if it will to impeach, then the issue has to be resolved
Government’s agreeing it wouldn’t use the product of a search in its case in chief does not make it moot unless the government also says it won’t use it in impeachment. Then, it can only be used against the defendant … Continue reading
N.D.Cal.: The fact California has legalized recreational marijuana does not make the smell of marijuana in a car no longer PC
The fact California has legalized recreational marijuana for small amounts does not make the smell of marijuana no longer probable cause. Here, there was a strong odor and defendant admitting he was carrying. An ounce or more would be an … Continue reading
W.D.Ark.: Sexually explicit Facebook chats from home IP address is PC for the home
Defense counsel couldn’t be ineffective for not challenging the search of defendant’s apartment because there was probable cause. Sexually explicit Facebook chats with a minor from one’s home IP address is probable cause for the home. United States v. Ram, … Continue reading
VA, concurring: State statute may provide exclusion where 4A doesn’t
The prior appeal was law of the case on application of exigent circumstances to justify the search. Campbell v. State, 294 Va. 486, 807 S.E.2d 735 (2017). On remand, defendant claimed another version of how the search was invalid because, … Continue reading
CA9: Excessive search of car 20 years ago was relevant to show officer “would have taken any means necessary to secure” plaintiff’s wrongful conviction
Plaintiffs were actually innocent of murder and served 20 years in prison before securing habeas relief for knowing Brady violations. They sued the police officer responsible for their conviction for clear Brady violations in withholding exculpatory information. As a part … Continue reading
WaPo: In horrifying detail, women accuse U.S. customs officers of invasive body searches
WaPo: In horrifying detail, women accuse U.S. customs officers of invasive body searches by Susan Ferriss, Center for Public Integrity:
CA5: Microsoft’s checking photos uploaded to cloud for CP is a private search
Defendant uploaded child pornography to Microsoft’s Skydrive. Microsoft runs all pictures’ hash values against known child pornography. Finding some, it reported it to law enforcement. This was purely a private search. United States v. Reddick, 2018 U.S. App. LEXIS 23012 … Continue reading
S.D.Cal.: Cell phone was validly searched under border search exception; obtaining passcode was likely unlawful, but government isn’t going to use it
Defendant was arrested at Calexico for importing meth. While in the holding cell, she gave up the password for the cell phone. The government isn’t going to use her revealing the password as evidence, but it wants to use the … Continue reading
LA2: CSLI obtained by SW before Carpenter: Observation
Court notes in passing in a final footnote that the CSLI here was obtained by warrant before Carpenter and it’s not an issue. State v. Lynn, 2018 La. App. LEXIS 1567 (La. App. 2 Cir. Aug. 15, 2018). Note: It’s … Continue reading
LA Times: ‘Technical error’ blamed for recordings of more than 1,000 attorney-inmate phone calls in O.C. jail
LA Times: ‘Technical error’ blamed for recordings of more than 1,000 attorney-inmate phone calls in O.C. jail by Hannah Fry:
WaPo: ICE arrested a wanted man driving his pregnant wife to give birth. She drove herself to the hospital.
WaPo: ICE arrested a wanted man driving his pregnant wife to give birth. She drove herself to the hospital. by Alex Horton: ICE said the man, a Mexican national living illegally in the United States, is wanted in his home … Continue reading
CA4: Ptf’s 1983 claim a Stingray was used on him survives Heck bar
Plaintiff’s claim that he was the subject of unlawful surveillance with a Stingray survives a Heck challenge and can proceed. Marcantoni v. Bealefeld, 2018 U.S. App. LEXIS 22798 (4th Cir. Aug. 16, 2018):
M.D.Ala.: Unmarked pill bottle with apparent crack in it was in plain view during protective sweep after arrest in house
Officers came in defendant’s house with an arrest warrant for cocaine delivery. During a protective sweep, an unmarked pill bottle was seen and picked up. It was immediately apparent to the officers that the contents was likely crack cocaine and … Continue reading
CA11: Plea to indictment without plea agreement isn’t conditional plea
Defendant’s plea to the indictment without a plea agreement didn’t preserve any appeal issues. Thus, there was no conditional plea. United States v. Thomas, 2018 U.S. App. LEXIS 22594 (11th Cir. Aug. 15, 2018). The Immigration Judge found that the … Continue reading
CA5: SW was not for all business records, just types of employment records and it was particular enough
Defendant was convicted of encouraging illegal aliens to remain in the United States. A search warrant for his business sought types of employment records, and it was not overly broad. “[G]eneric language is permissible if it particularizes the types of … Continue reading
MN: Apt building common hallway not curtilage under Jardines for dog sniff
Dog sniff in the common hallway of an apartment building wasn’t unreasonable because it’s not curtilage under Jardines. State v. Edstrom, 2018 Minn. LEXIS 446 (Aug. 15, 2018). There was nexus: “Here, the investigating officer had significant experience. The officer … Continue reading
D.Kan.: Arrest for possession of cash wasn’t even reasonably valid under state law; exclusionary rule applies in federal court
Defendant was stopped, and the officer gave a warning. He continued asking questions which led to a consent search finding cash. The officer then arrested defendants for possession of the proceeds of a drug transaction. Only there were no probable … Continue reading
TX1: Pill bottle in pocket wasn’t presumed to contain contraband; plain feel not valid
Defendant admits that he was validly stopped and patted down. The only question is whether the pill bottle removed from his pocket was subject to plain feel, and the court concludes it was not. It was obviously not a weapon, … Continue reading