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Recent Posts
- CA7: Jail officials holding ptif under a valid court order aren’t liable for not releasing him sooner after a sentencing error
- 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
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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: February 2019
W.D.Wash.: 14 month delay in searching seized cell phone was reasonable because it wouldn’t have been returned anyway
A 14 month delay between seizure and search of defendant’s cell phone was not unreasonable because the phone would not have been returned to defendant in any event. Plus, he was in jail and couldn’t possess it. United States v. … Continue reading
SCOTUS: The excessive fines clause of the 8A applies to the states via 14A as to in rem forfeitures
Timbs v. Indiana, 2019 U.S. LEXIS 1350 (Feb. 20, 2019). Syllabus:
Reason.com: How the Feds Are Using Civil Asset Forfeiture to Threaten Free Speech
Reason.com: How the Feds Are Using Civil Asset Forfeiture to Threaten Free Speech by Elizabeth Nolan Brown: Sex, publishing, and quasi-legal theft collide in the Backpage prosecution. Prosecutors are ignoring the Constitution and legal precedent in their zeal to punish … Continue reading
W.D.La.: USPS website usage records are third-party records, and def had no REP in them
The government had digital evidence that defendant tracked a package on the USPS. His motion to suppress this third-party evidence is denied. First, anybody could track a package on the USPS website if they had the tracking number, and, second, … Continue reading
D.Neb.: Initial entry into hotel room was unlawful, but affidavit for SW showed PC before that happened, and SW not suppressed
Even though the officer’s entry into the hotel room was unlawful, the officer had probable cause before that. So, even ignoring the observations in the room, the warrant will not be suppressed. United States v. Sandoval, 2018 U.S. Dist. LEXIS … Continue reading
Three on ineffective assistance claims
There’s no reasonable probability defense counsel was ineffective for not filing a motion to suppress defendant’s BAC because it wouldn’t have been granted. State v. Olsen, 2019-Ohio-568, 2019 Ohio App. LEXIS 588 (2d Dist. Feb. 15, 2019),* Petitioner’s ineffective assistance … Continue reading
CA5: Ptf’s indictment by a Texas grand jury cuts off his malicious prosecution claim
Plaintiff’s indictment by a Texas grand jury cuts off his malicious prosecution claim. There was no evidence the grand jury was misled. Curtis v. Sowell, 2019 U.S. App. LEXIS 4666 (5th Cir. Feb. 15, 2019). Defendant was encountered by police … Continue reading
D.D.C.: Knotted plastic bag of drugs in waistband was in plain view
Defendant was stopped for a traffic offense, and his tinted windows were way too dark and the officer couldn’t see inside. Defendant was told to lower the window, and he did. The officer could immediately see a knotted plastic bag … Continue reading
CA6: Knock-and-talk on curtilage was permitted
Officers came to plaintiff’s home for a knock-and-talk, and he went out the back with a gun in hand. One officer pursued him, and he ended up racking and pointing the gun and getting shot. The officers get qualified immunity … Continue reading
OH7: Def’s one phone call from station house was on a recorded phone with a sign it was; no REP
Defendant was just arrested, and he was given his one phone call before going to jail. The call was recorded, and the sign on the wall said it was. He had no reasonable expectation of privacy in the call. State … Continue reading
D.Conn.: No REP in airplane and contents by absent co-conspirator who claimed ownership
There was a “ramp check” authorized by FAA regulation of a private plane at an airport in Connecticut, essentially a traffic stop. It was admitted that a small quantity of marijuana was on the plane. The automobile exception applies to … Continue reading
CA6: No successor 2255 for Carpenter
Petitioner seeks a 2255 successor habeas petition based on Carpenter. It’s denied because: It’s not newly discovered, and it wouldn’t even apply because of the good faith exception. In re Gipson, 2019 U.S. App. LEXIS 4457 (6th Cir. Feb. 14, … Continue reading
S.D.N.Y.: Protective sweep was invalid, and SW predicated on it is suppressed
The government’s assertion of need for protective sweep was belied by the delay in getting around to conducting it. The product of the protective sweep made it into the search warrant application, and the product of the warrant is suppressed. … Continue reading
WA: Breath test was valid as search incident
A breath test conducted under the implied consent law is a valid search incident to arrest. The state constitution does not impose a higher standard. State v. Nelson, 2019 Wash. App. LEXIS 354 (Feb. 14, 2019). Defendant didn’t raise a … Continue reading
N.D.Ohio: Corroboration of CI for rectal SW was thin, but GFE applies
Based on a CI that was partially corroborated, officers believed defendant was concealing drugs in his rectum. They obtain a search warrant for a rectal search. The probable cause from the CI is thin. “Basic fairness requires the government to … Continue reading
W.D.Tex.: RS of a weapon nearby in a car authorizes opening the door
“In this case the officers had either probable cause or reasonable suspicion to open the car doors to substantiate their belief that weapons, drugs and money were in the vehicle. Further, they were authorized to take photographs to inventory the … Continue reading
WaPo: With fitness trackers in the workplace, bosses can monitor your every step — and possibly more
WaPo: With fitness trackers in the workplace, bosses can monitor your every step — and possibly more by Christopher Rowland:
CA7: Entrapment defense isn’t relevant to whether controlled buy is PC; it’s a question for trial
Defendant’s assertion of entrapment in a controlled buy is a question for trial. It doesn’t negate the fact that the buy occurred and that probable cause exists. State v. Curtis, 2019-Ohio-499, 2019 Ohio App. LEXIS 514 (7th Dist. Jan. 25, … Continue reading
OH9: Inadequate findings on officer safety patdown requires remand
The trial court’s findings of an alleged officer safety justification for his patdown are inadequate for the court of appeals to decide whether the state justified the patdown. Remanded for more findings. State v. Murphy, 2019-Ohio-515, 2019 Ohio App. LEXIS … Continue reading