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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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"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: October 2018
D.Haw.: “Intended recipient” of a parcel whose name isn’t on it has no standing.
As an “intended recipient” of a parcel, defendant has no standing. His name isn’t on the package as sender or recipient. United States v. Williams, 2018 U.S. Dist. LEXIS 177669 (D. Haw. Oct. 16, 2018). Officers could reasonably believe that … Continue reading
CA6: Officer spent 90 minutes at plaintiff’s house on the curtilage trying to get him to come out for a probation breath test; that violated 4A but officer gets QI
Plaintiff is a probationer who had a police officer show at his house to get a breath sample per his probation conditions. Despite repeated knocking and use of the police car’s PA system, plaintiff didn’t come to the door and … Continue reading
AL: Def waived REP in cell phone by leaving it at crime scene
Defendant waived any reasonable expectation of privacy in his cell phone by leaving it at the crime scene. Tolbert v. State, 2018 Ala. Crim. App. LEXIS 65 (Oct. 15, 2018). The child pornography affidavit for search warrant wasn’t a “model … Continue reading
CO: Unauthorized taking of juvenile’s DNA requires suppression
Unauthorized collection of DNA from a juvenile offender is subject to suppression and it should be purged from CODIS. Casillas v. People, 2018 CO 78M, 2018 Colo. LEXIS 832 (Oct. 15, 2018). A routine traffic stop outside of a municipal … Continue reading
VA: CSLI obtained before Carpenter was valid
CSLI obtained in 2012 and 2015 was lawful at the time before Carpenter, so the good faith exception applies. (The case was GVR’d because of Carpenter.) “We adopt the analytical framework set forth in Chavez. Appellant’s CSLI was acquired in … Continue reading
CA5: Unconditional guilty plea waives 4A claims
Even after Class v. United States, 138 S. Ct. 798 (2018), an unconditional guilty plea waives search and seizure claims. “So under Class, Torres may not raise a Fourth Amendment challenge on appeal, given his voluntary unconditional guilty plea. See … Continue reading
CA6: Police cannot summarily kill dogs in houses they search
From 1919-2014, it violated Michigan law to have an unlicensed dog over six months old, and state law and city ordinance permitted officials to kill them. In 2014, that changed. Plaintiffs became squatters in an abandoned house in Detroit, and … Continue reading
CA11: Work-related injuries don’t necessarily translate into OSHA violations; records request quashed as overbroad
Existence of work-related injuries or illnesses do not translate directly into reasonable suspicion that an OSHA violation occurred. The district court was correct in quashing the inspection warrant for lack of a proper showing, without prejudice to OSHA establishing the … Continue reading
NYTimes: How an Unlikely Family History Website Transformed Cold Case Investigations
NYTimes: How an Unlikely Family History Website Transformed Cold Case Investigations by Heather Murphy: Fifteen murder and sexual assault cases have been solved since April with a single genealogy website. This is how GEDmatch went from a casual side project … Continue reading
WaPo: Opinion: Little Rock’s dangerous and illegal drug war
WaPo: Opinion: Little Rock’s dangerous and illegal drug war by Radley Balko (with security video of the raid) (and this is a product of Hudson v. Michigan, which we can thank SCOTUS for):
OH2: Motion for return of property after a forfeiture order is final is moot
A motion for return of property after a forfeiture order is final is moot. State v. Housley, 2018-Ohio-4140, 2018 Ohio App. LEXIS 4467 (2d Dist. Oct. 12, 2018). There was no Franks violation. Officers got permission from a child to … Continue reading
DE: Officer’s training and experience in intoxicated drivers was relevant and significant to the PC showing
The officer’s training and experience in intoxicated drivers was relevant and significant to the probable cause showing in the affidavit for defendant’s BAC. He was not a mere layperson making an observation as defendant says. State v. Law, 2018 Del. … Continue reading
DE: Motion deadlines are there for a reason; the defense doesn’t show “exceptional circumstances” to overcome the deadline
There are motion deadlines for a reason. Former defense counsel reviewed the file and didn’t see a basis for a motion to suppress. Another defense lawyer came in and did. The excuse for getting around the deadline is late disclosure … Continue reading
CA8: Def abandoned a rental car he didn’t rent and didn’t have keys to on another’s back property
Defendant drove a rental car rented by another and parked it in someone’s backyard he didn’t know. He knocked on the door, got no answer, and left the car there. The owner, however, was there and didn’t answer the door. … Continue reading
D.Kan.: Driver had no standing in car search even though owner was with him in car
A mere possessor/driver of a car has no standing in it, even allegedly with permission of the owner who was sitting in the car with him [and this certainly seems completely contrary to Bryd]. United States v. Gonzalez-Molina, 2018 U.S. … Continue reading
N.D.Ga.: Court assumes exclusionary rule applies to 404(b) evidence and finds 2003 search valid for trial in 2018; frisk of fannypack valid
Defendant moved to suppress 404(b) evidence of a 2003 stop and search that the government will offer into evidence in his current indictment involving allegations from 2014 going to trial shortly. The stop was on video, and the officer’s testimony … Continue reading
E.D.Ky.: Searching def’s underwear for drugs at 1:24 am on a virtually empty street that nobody likely saw was not unreasonable
The officer’s search of defendant’s underwear for drugs at 1:24 am on a dark night and nearly empty street was not a strip search and it was reasonably conducted. Nobody else was close enough to see anything. United States v. … Continue reading
E.D.Wis.: SW in tax fraud case wasn’t stale despite some information being years old
Defendants were indicted in a tax fraud scheme, and some of the information used to get the warrant was years old. The court finds it not stale on the totality because it is a records case and it is common … Continue reading
KS: Pushing a button on a cell phone to light up screen was not a plain view; suppression affirmed
Defendant was involved in a fatal car accident, and the officer at the scene allegedly saw the screen of the cell phone in plain view showing texting at the time of the accident. While two U.S. District Court cases support … Continue reading
TN: Def wasn’t seized when officer parked next to him to talk, but he was when he tried to leave and was told to stop; all reasonable
Stopping next to defendant’s car to talk to him wasn’t a seizure. When defendant moved and attempted to leave, the officer told him to stop, and that was a seizure. The encounter was based on an anonymous caller’s information, and … Continue reading