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- techdirt: The Problems Of The NCMEC CyberTipline Apply To All Stakeholders
- W.D.Ark.: Parole search waiver moots lack of PC argument
- AR: RS shown for boating while intoxicated stop
- W.D.Mo.: Wrong address in SW wasn’t fatal where right house was searched
- NY: Failure to show independent source for officer’s observation of def required reversal
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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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Fourth Amendment cases,
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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)
Website design by Wally Waller, Little Rock 
Monthly Archives: February 2020
The Guardian: Rules urgently needed to oversee police use of data and AI – report
The Guardian: Rules urgently needed to oversee police use of data and AI – report (“Report warns that technology, uptake of which has largely been driven by cuts, could lead to discrimination”)
The Recorder: California’s Appellate Courts Are Fine-Tuning When Juvenile Offenders Are Subject to Warrantless Searches
The Recorder: California’s Appellate Courts Are Fine-Tuning When Juvenile Offenders Are Subject to Warrantless Searches (“Although California’s First District Court of Appeal did not rule on the constitutional questions raised in the appeal, the court blocked the attorney general’s attempt … Continue reading
IN: Warrant-placed GPS unit’s failure is not PC to believe defendant stole it
Just because a GPS device lawfully planted on a car stops working is not probable cause to believe the defendant stole it. The search warrant for his house and barn to recover it lacked all probable cause and any basis … Continue reading
Yes, I know this blog is behind
I have a three week trial in early March. I’m doing what I can, but 40-50 cases a day come from Lexis.
SCOTUS: The estate of a young man shot and killed across the U.S.-Mexico border by a U.S. Border Patrol agent has no 4A or 5A Bivens claim.
The estate of a young man shot and killed across the U.S.-Mexico border by a U.S. Border Patrol agent for no reason has no Bivens claim for a Fourth or Fifth Amendment claim. Hernández v. Mesa, 2020 U.S. LEXIS 1361 … Continue reading
techdirt: Ring Continues To Pitch Facial Recognition To Law Enforcement While Claiming It Won’t Be Adding Facial Recognition To Its Cameras
techdirt: Ring Continues To Pitch Facial Recognition To Law Enforcement While Claiming It Won’t Be Adding Facial Recognition To Its Cameras by Tim Cushing (“Ring continues to insist it is not adding facial recognition to its sadly super-popular doorbell cameras. … Continue reading
Vox: The police want your phone data. Here’s what they can get — and what they can’t.
Vox: The police want your phone data. Here’s what they can get — and what they can’t. By Sara Morrison (“Phones hold gigabytes of potential evidence, but the government’s ability to access them depends on a patchwork of court decisions … Continue reading
Lawfare: Do Geofence Warrants Violate the Fourth Amendment?
Lawfare: Do Geofence Warrants Violate the Fourth Amendment? by Nathaniel Sobel:
17th anniversary of this blog; 259th anniversary of Otis’ argument in Paxton’s Case
Today is the 17th anniversary of this blog. Today is also the 259th anniversary of James Otis’ 1761 argument at the Boston Old State House against the writs of assistance in Paxton’s Case. Transcripts of the argument are here. (It … Continue reading
Mother Jones: California Cops Are Collecting Info on Millions of Drivers Who Have Done Nothing Wrong
Mother Jones: California Cops Are Collecting Info on Millions of Drivers Who Have Done Nothing Wrong (“With few rules and no oversight, California’s biggest law enforcement agencies are sharing millions of driver records.”)
CBS News: Racial Profiling 2.0
CBS News: Racial Profiling 2.0 (“As police departments turn to big data to help reduce crime in their neighborhoods, advocacy groups are sounding the alarm about high-tech racial profiling. The algorithm-driven systems analyze supposedly impartial historical crime data to predict … Continue reading
OH: Lack of RS for stop or knowledge of an arrest warrant denies state reliance on Strieff for outstanding warrant
Defendant was sitting in a car near a drug house doing nothing wrong. Police accosted him under the pretext there might be a warrant for him. It turned out there was. Even applying Strieff, the court concludes that Strieff was … Continue reading
OH: While affidavit for SW may have been deficient, it was supplemented by testimony and it was reasonable to find PC
While the affidavit itself may have been deficient on showing probable cause, the officer provided the issuing magistrate additional information to supplement it. Thus, the officer reasonably relied upon the warrant in good faith. Trial court erred in suppressing. State … Continue reading
CA11: Further detaining plaintiff at jail after she made bond on a hunch she was not legally in the U.S. denied QI
“The evidence, interpreted in the light most favorable to Alcocer, is sufficient for a reasonable jury to conclude that Mills violated Alcocer’s Fourth Amendment rights by continuing to detain her without new probable cause after her attempted posting of bond … Continue reading
W.D.N.Y.: Getting def to unlock his phone wasn’t unreasonable because the SIM card would have been forensically searched later anyway
It was reasonable for POs to search defendant’s unapproved cell phone without a search warrant as a probation search. Making him use his face or get the password to unlock the phone was not unreasonable because the contents of the … Continue reading
N.D.Miss.: Issuing USMJ can’t be subpoenaed to testify to mental impressions in issuing SW
Defendant doesn’t get to subpoena the issuing magistrates for the search warrant because their mental impressions are irrelevant and whether a telephonic warrant was avoidable by essentially shopping for a different judge. Nevertheless, the issue is held in abeyance since … Continue reading
NYTimes: Greyhound to Stop Allowing Border Patrol Agents on Its Buses Without Warrants
NYTimes: Greyhound to Stop Allowing Border Patrol Agents on Its Buses Without Warrants by Johnny Diaz (“The bus company announced the policy change only days after a leaked memo revealed that agents could not board without consent.”)
MT: Mandamus to get SW materials from 1998 denied for complete failure to comply with mandamus statute
Mandamus to get search warrant materials from 1998 denied: “Insua’s instant petition is lacking because it does not conform to Montana statutes. He has not filed a verified petition or included an affidavit, pursuant to § 27-26-201, MCA. Insua has … Continue reading
E.D.Mich.: The person stopped telling police he knows his rights isn’t RS; his flight from an unreasonable stop wasn’t RS either
“Just as numerous courts have stated nervousness cannot be a reliable indicator of criminal activity, loudly asserting one’s right to terminate an encounter with officers does not provide reasonable suspicion for continued investigation of suspected criminal activity.” United States v. … Continue reading