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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
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- 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)
--Overview of the 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 
Daily Archives: March 15, 2020
ABAJ: Inmate wins [pretrial] release after jail recorded hundreds of attorney-client calls
ABAJ: Inmate wins release after jail recorded hundreds of attorney-client calls by Stephanie Francis Ward:
W.D.Wash.: Specialized P2P software for a CP search doesn’t otherwise create a REP issue that doesn’t exist
The government’s use of specialized software to search peer-to-peer files didn’t create a reasonable expectation of privacy claim. “RoundUp, software with certain technological modifications to a public, open-source P2P network sharing client, is designed to access public files that individuals … Continue reading
CA2: Even assuming this supervised release search lacked RS, there were facts supporting it and the exclusionary rule will not be applied
Even if the supervised release search here was without reasonable suspicion, the purposes of the exclusionary rule aren’t served. “Even assuming [Officer] Dyckman acted unreasonably in failing to conduct further investigation before executing the search, this is not the kind … Continue reading
NYTimes: How National Security Surveillance Nabs More Than Spies
NYTimes: How National Security Surveillance Nabs More Than Spies (“The case against Nassif Sami Daher and Kamel Mohammad Rammal, two Michigan men accused of food stamp fraud, hardly seemed exceptional. But the tool that agents used to investigate them was … Continue reading
OH10: Lack of findings of fact and conclusions of law on grant of suppression motion requires remand to make them
The trial court’s grant of suppression is reversed and remanded because of its inadequate findings of fact and conclusions of law for appellate review. State v. Peeks, 2020-Ohio-889, 2020 Ohio App. LEXIS 812 (10th Dist. Mar. 10, 2020). Defendant officers … Continue reading
Cal.1: The state cannot be forced to issue a SW to gather evidence for the defense
The defense sought murder victims’ social media account content, and the trial court refused to quash a subpoena which was challenged under the Stored Communications Act. The materials by statute would have to be produced in camera. As an alternative … Continue reading
W.D.N.Y.: Just because the govt can’t unlock def’s iPhone doesn’t mean he can get return of it under Rule 41(g)
Just because the government hasn’t yet accessed defendant’s iPhone because it can’t crack the code to unlock it doesn’t mean that defendant can get it back under Rule 41(g). It’s still potential evidence. United States v. Morgan, 2020 U.S. Dist. … Continue reading
D.Nev.: No REP in prescription drug database from police inspection
Defendant had no reasonable expectation of privacy in the Nevada prescription drug database because he willingly provided the information to the doctor and the pharmacist, and the police need cause to get access. United States v. Motley, 2020 U.S. Dist. … Continue reading
E.D.Wis.: No REP child porn sent by Facebook Messenger won’t be retransmitted to police by Facebook
There is no reasonable expectation of privacy in child pornography uploaded to Facebook Messenger. Even treating it as email (Warshak), the email provider can turn child pornography over to law enforcement when it is transmitted. Then a further search warrant … Continue reading
OH3: Arrest of drug offender coming home outside his house led to officers hearing “scurrying about” inside, and that justified warrantless entry
One man under investigation for drug crimes was arrested outside a house when officers went there waiting for him to arrive. On the arrest, officers heard others inside “scurrying around” [how?]. This created exigency and justified a warrantless entry into … Continue reading
OK: Two hours of CSLI in 2012 not excluded
Two hours of CSLI in 2012 to connect defendant to a capital murder was not subject to the exclusionary rule. Carpenter n.3 in 2018 left open this situation. Fuston v. State, 2020 OK CR 4, 2020 Okla. Crim. App. LEXIS … Continue reading
OR: Mere passenger in vehicle can remove personal belongings before inventory
A passenger in a vehicle to be inventoried after a stop is entitled to notice to retrieve her personal belongings before it happens. Only this is consistent with the purpose of the inventory requirement. Other states are in accord, and … Continue reading