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- 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
- CA4: Tracking order using cell site simulator with PC was reasonable
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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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Monthly Archives: July 2020
E.D.N.C.: Tower dump order different than long term CSLI; § 2703 order suffices under Carpenter
“In light of the significant differences between a tower dump CLSI and long term CSLI targeted at the whole of an individual’s movements, as highlighted by the court’s decision in Carpenter, the court finds no basis for attaching a Fourth … Continue reading
D.Idaho: Broad email warrants are not per se unreasonable
Broad email search warrants were not unreasonable just because they were broad. The breadth of the financial crime under investigation justifies it. In addition, the good faith exception applies and it’s too early to tell if any has to be … Continue reading
techdirt: The FBI Is Abusing The All Writs Act To Gain Access To Millions Of Travel Records
techdirt: The FBI Is Abusing The All Writs Act To Gain Access To Millions Of Travel Records by Tim Cushing:
CA10: Entry onto curtilage at 3:30 am was reasonable based on exigency of domestic battery call
Police approach to defendant’s house at 3:30 am was reasonable because it was based on a domestic violence report to check on his wife. “Finally, Jardines, King, and Manzanares do not apply here. The Officers did not search Mr. Martinez’s … Continue reading
CT: Police wait for def to attempt to retrieve sawed off shotgun in backyard was still exigency
The police had a reasonable belief defendant had used a sawed off shotgun to threaten someone and that it was likely in his backyard. They waited for him to reappear to attempt to recover the gun, and when he did, … Continue reading
Mother Jones: Trump Plans to Expand Federal Invasion of American Cities
Mother Jones: Trump Plans to Expand Federal Invasion of American Cities (“‘You’ll see something rolled out this week,’ chief of staff says.”) Update: ABAJ: Oregon sues US agencies over protest arrests; what gave feds authority to intervene? by Debra Cassens … Continue reading
NYT: A Timely Case on Police Violence at the Supreme Court
NYT: A Timely Case on Police Violence at the Supreme Court (“The justices will hear arguments in October over whether excessive force claims against the police are barred when the people they shoot get away.”)
NY4: Jurisdiction of magistrate to issue SW is waivable by guilty plea
A jurisdictional claim to issue the warrant was waived below well before the guilty plea. People v. Mitchell, 2020 NY Slip Op 04029, 2020 N.Y. App. Div. LEXIS 4188 (4th Dept. July 17, 2020). It’s settled that the exclusionary rule … Continue reading
Law360: ‘Good Faith’: Breonna Taylor And The Broad Search Standard
Law360: ‘Good Faith’: Breonna Taylor And The Broad Search Standard by Cara Bayles
CA9: Dist.Ct.’s findings of pretextual inventory supported by evidence and affirmed
The district court’s conclusion the impoundment of the car and inventory search was pretextual is supported by the evidence and is affirmed. United States v. Turnbow, 2020 U.S. App. LEXIS 22341 (9th Cir. July 17, 2020). Defendant’s argument over the … Continue reading
CNN: Police used drones to monitor nudity at a Minnesota beach
CNN: Police used drones to monitor nudity at a Minnesota beach by Jay Croft (“Police near Minneapolis used drones last week to check if sunbathers at a lakeside beach were breaking the law by going nude or topless. The Golden … Continue reading
W.D.Ark.: Stop for following too close was without PC when truck pulled in front of car and officer didn’t give time for def to widen the gap
Defendant’s stop for following too close was without probable cause and unreasonable because a truck pulled in front of him, and the officer didn’t give him time to back off before the stop occurred. United States v. Grant, 2020 U.S. … Continue reading
E.D.Wis.: Six week delay in getting SW for electronics was reasonable; affidavit for SW showed scope of investigation
A six week delay between seizure of electronic devices and then seeking a warrant was reasonable. There likely was probable cause based on the seizure, but the affidavit for the warrant showed what the officers were doing in their “robust” … Continue reading
CA8: Open door doesn’t require knock-and-announce at common law
The officer’s entering through an open door didn’t require knock-and-announce at common law. United States v. Sherrod, 2020 U.S. App. LEXIS 22296 (8th Cir. July 17, 2020):
CA6: No Bivens remedy for seizure of BoP prisoner’s property
A Bivens remedy should not exist for actions against prisons for seizure of an inmate’s artwork that allegedly violated prison regulations. Courts don’t want to get into monitoring prisons. Callahan v. Fed. Bureau of Prisons, 2020 U.S. App. LEXIS 22115 … Continue reading
NBC: Inside the surveillance software tracking child porn offenders across the globe
NBC: Inside the surveillance software tracking child porn offenders across the globe Olivia Solon (“The Child Protection System helps police triage child pornography cases. But as the system expands, it’s facing growing privacy concerns.”):
CNN: US attorney requests DHS investigation after video shows masked, camouflaged federal authorities arresting protesters in Portland
CNN: US attorney requests DHS investigation after video shows masked, camouflaged federal authorities arresting protesters in Portland by Amir Vera, Konstantin Toropin & Josh Campbell (“The US Attorney for the Oregon District on Friday requested an investigation into masked, camouflaged … Continue reading
Oregon Public Broadcasting: Federal Law Enforcement Use Unmarked Vehicles To Grab Protesters Off Portland Streets
OPB: Federal Law Enforcement Use Unmarked Vehicles To Grab Protesters Off Portland Streets by Jonathan Levinson & Conrad Wilson:
CA8: Google’s search of email account for CP was private search, and it could continue to do so after first reports
Google’s finding child pornography in its mail system was a private search, and it turned it over to NCMEC. “It is inconsequential that Google continued to scan his email accounts or uncover identifying information after sending its initial report. These … Continue reading