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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?
- 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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Congressional Research Service:
--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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Daily Archives: September 13, 2019
CA4: USMJ must review law firm’s seized privileged materials, not USAO’s “filter team”
Two days after oral argument on a law firm’s appeal that a USMJ reviewed privileged materials seized from the firm by search warrant and not the USAO’s “filter team,” the Fourth Circuit orders the Magistrate to do it pending issuance … Continue reading
Search issues resolved on appeal can’t be considered in post-conviction
Petitioner’s 2255 Fourth Amendment claim was already decided on direct appeal and can’t be raised now. Felix v. United States, 2019 U.S. Dist. LEXIS 154587 (M.D. Fla. Sept. 11, 2019).* Same with this state conviction. Haithcox v. State, 2019 MT … Continue reading
WA: Community caretaking function was a pretext to search for evidence, and search is suppressed
The warrantless search of defendant’s home was pretextual under the community caretaking function when there was no justification for it. The court also declines to adopt a “dead body rule.” State v. Boisselle, 2019 Wash. LEXIS 579 (Sept. 12, 2019):
NYTimes: Officers Said They Smelled Pot. The Judge Called Them Liars.
NYTimes: Officers Said They Smelled Pot. The Judge Called Them Liars. By Joseph Goldstein: (“Courts in New York have long ruled that if a car smells like pot, the police can search it. But now, a backlash is mounting.”).
Legal Intelligencer: In Fight Over Nanny Cam Footage, Pa. Justices to Wrestle With Privacy Under Wiretap Law
Legal Intelligencer: In Fight Over Nanny Cam Footage, Pa. Justices to Wrestle With Privacy Under Wiretap Law by Zack Needles:
CA8: Patel didn’t bar police requesting look at hotel registry in looking for bank robbers; third-party doctrine applies
City of Los Angeles v. Patel didn’t make the police look at a hotel registry a search. Defendants were suspected of bank fraud and aggravated identity theft in printing bogus checks and cashing them. Police went to a motel where … Continue reading
N.D.Ohio: Almost immediate dog sniff during stop didn’t prolong it
The officer had an objective basis for the stop, so defendant’s pretext claim fails. The dog sniff occurred almost immediately during the stop and the stop wasn’t prolonged for it. United States v. Martinez, 2019 U.S. Dist. LEXIS 155124 (N.D. … Continue reading
Iowa this week
A traffic stop can be based on probable cause or reasonable suspicion of a traffic violation. The trial court credited that the officer believed a headlight was out, and the evidence supports that conclusion. State v. White, 2019 Iowa App. … Continue reading
GA: Findings and conclusions aren’t always required, and record would be looked to for support
The trial court didn’t make specific findings that defendant consented to the taking of blood for a BAC test. So, the appellate court looks to the record and finds that the evidence supports a finding of consent and denial of … Continue reading
MO: Suspicionless bookbag search at school was safety related and reasonable
This juvenile was subjected to a suspicionless bookbag search by school security in a St. Louis public school that found a gun. The court finds the search was reasonable based on the school safety factor alone. In the Interest of … Continue reading