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- E.D.Va.: Must plead prejudice when delay of a cell phone SW is alleged
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- CA7: Jail officials holding plaintiff 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?
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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: September 2019
N.D.Fla.: Unsupported allegation state judge signing SW was “under investigation” doesn’t warrant dismissal of indictment
Defendant’s unsupported claim that the state judge who signed off on his search warrant that led to a federal indictment was under some unspecified investigation doesn’t warrant dismissal of the indictment. United States v. Hamda, 2019 U.S. Dist. LEXIS 163199 … Continue reading
D.D.C.: Roger Stone’s Franks challenge to 18 SWs “completely failed” for lack of govt falsity or materiality
Defendant’s challenge to 18 search warrants for Franks violations fails for not showing what was false provided by the affiant and for lack of materiality to the finding of probable cause. The failures of the source documents, if any, aren’t … Continue reading
WVVA: After crackdown on pill mills, more drugs being seized by mail
WVVA: After crackdown on pill mills, more drugs being seized by mail [this what we’ve all noticed for years]:
Reason: A License for Outrageous Police Conduct
Reason: A License for Outrageous Police Conduct by Jacob Sullum (“Qualified immunity protects cops from liability for actions that would land ordinary people in jail.”)
The Hill: Basic biometrics: Why this emerging technology must be regulated now
The Hill: Basic biometrics: Why this emerging technology must be regulated now by Adam Leval:
D.Minn.: Car being stuck in snow and key fob not there doesn’t nullify application of the automobile exception
A car stuck in the snow at the end of the alley and defendant without the key fob is still mobile for the automobile exception. “Any temporary loss of mobility is insufficient to take Williams’s case outside the automobile exception.” … Continue reading
TN: Belated writ of error coram nobis can’t be used in state court to challenge search that already was used in a federal case too to attempt to undo the federal case
Petitioner appears to be attempting to challenge his federal conviction in state court in a parallel criminal proceeding where the same search was used in both cases. He’s attempting to challenge the search in state court by writ of error … Continue reading
CA9: QI: without a case almost on point, you lose
A typical Fourth Amendment qualified immunity outcome on appeal: You need a case that’s obvious or a case substantially on point. Without it, you lose. Sightler v. Nisleit, 2019 U.S. App. LEXIS 28702 (9th Cir. Sept. 23, 2019)*:
CA9: When defendant is being “detained” and not under arrest, search incident doesn’t apply
The inventory of defendant’s vehicle violated LVMPD’s limited inventory policy, and it is found unreasonable. The government’s search incident alternative wasn’t presented to the trial court. Even assuming it was not waived, this was during a “detention” on less than … Continue reading
Motherboard: The Private Surveillance System That Tracks Cars Nationwide
Motherboard: The Private Surveillance System That Tracks Cars Nationwide (“It’s not just the NSA with all of the surveillance power in America, there’s a booming corporate-owned surveillance industry used by private investigators.”).
The Appeal: With Vast Surveillance Network, Pittsburgh D.A. Has ‘Created a Dystopian’
The Appeal: With Vast Surveillance Network, Pittsburgh D.A. Has ‘Created a Dystopian’ by Kira Lerner (“Allegheny County District Attorney Stephen Zappala has gotten into the surveillance game, but advocates say that raises questions about his role.”)
Corporate Counsel/Law.com: Analysis: U.S. Privacy Law and Employee Monitoring: On a Collision Course?
Corporate Counsel/Law.com: Analysis: U.S. Privacy Law and Employee Monitoring: On a Collision Course? By Risa B. Boerner and Jeffrey M. Csercsevits (“Gone are the days when employers could expect to monitor employees’ behavior and activity with relative impunity.”)
W.D.Ark.: Whether windshield was cracked enough to be a violation of traffic laws doesn’t matter, it was still cracked which was enough for a stop
Defendant was stopped because of a crack in the windshield. He argued it wasn’t sufficiently cracked to be a violation of law. The point is, however, that the stop was at least justified by the crack. “To summarize, Officer Johnson … Continue reading
OH2: On entry to arrest defendant when children were found at home, it was not unreasonable to look for others to care for them
On arresting defendant at home, the police later obtained a search warrant, too. The initial entry into the rest of the house to look for someone to tend to the children with defendant at the time of arrest was reasonable. … Continue reading
D.P.R.: Colombia requesting U.S. telephone number so they could wiretap it didn’t make this a joint venture
The Colombian government requested a U.S. telephone number, and then they wiretapped it under their law. Later, they provided some information off the wiretap to the U.S. This was not sufficiently a joint venture to invoke the Fourth Amendment. United … Continue reading
W.D.N.Y.: The fact a SW affidavit for guns also suggests drugs doesn’t make a Franks issue; a SW can have a dual purpose but rely more heavily on one
Defendant fails to satisfy his Franks burden that the affidavit for the search warrant was intended to be misleading. The affidavit was for trafficking in firearms, but a CI’s statement also references drugs. Defendant’s conclusory allegations don’t satisfy the “substantial … Continue reading
AL: Failure to have arrest warrant in hand under state law voids the arrest and the search incident that occurred; Heien inapplicable
Defendant was unreasonably and mistakenly arrested without the officer having the arrest warrant in hand as required by state law, and the search incident to the arrest is suppressed. The court finds Heien and the good faith exception inapplicable because … Continue reading
N.D.Okla.: Impoundment and inventory was non-pretextual and reasonable
The impoundment and inventory of defendant’s rented car was reasonable under all the circumstances at the time it happened, and it was factually justified and not pretextual. It would have been left in a high crime area on private property, … Continue reading
Cal.1: An electronic device probation search condition is reasonable to aid rehabilitation; but here it needs to be narrower
An electronic search condition for this juvenile involved in car burglaries was reasonable in its inception, but it had to be narrowed. The court finds an electronic search condition reasonable because of the inordinate amount of time he spends on … Continue reading