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- D.Mont.: 30-day delay in getting SW for seized storage building not unreasonable
- E.D.Cal.: Smell of MJ still PC in a California National Park even though not under state law
- CA10 dissent: Bivens on its last legs
- VA: Consent to look in backpack permitted search of pill bottle
- NY3: Warrantless arrest body cavity search was unreasonable
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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)
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Monthly Archives: January 2021
CA10: Code enforcement officer coming to ptf’s door to talk to him didn’t violate curtilage
A city code enforcement officer who came to plaintiff’s door for a couple of minutes to attempt to talk to him about a sign code violation did not violate the curtilage. Clark v. City of Williamsburg, 2021 U.S. App. LEXIS … Continue reading
The Appeal: They Took Umbrellas To A Black Lives Matter Protest. The D.A. Hit Them With Gang Charges
The Appeal: They Took Umbrellas To A Black Lives Matter Protest. The D.A. Hit Them With Gang Charges, by Med O’Connor (“Police and prosecutors routinely treat white domestic terrorists with kid gloves, but use the full force of the law … Continue reading
CA6: Judge issuing SW isn’t barred from conducting trial
The Michigan state courts’ conclusion that the judge who issued a search warrant was not barred from hearing the trial was based on precedent, the judge didn’t remember the search warrant, and it is not an unreasonable application of existing … Continue reading
D.Colo.: Hotel has no duty to protect guest from 4A violations, assuming there was one
An airline pilot nude in his room who was seen through the window doesn’t state a Fourth Amendment claim that the hotel had a duty to protect him from being seen by the public. Besides that, he doesn’t state any … Continue reading
TX11: No spousal privilege in recorded jail calls
Defendant’s jail calls to his wife were not privileged because he knew from the recording at the start of the call that it was being recorded. Newman v. State, 2021 Tex. App. LEXIS 293 (Tex. App. – Eastland Jan. 14, … Continue reading
NPR: War On Terror Birthed Pentagon’s Automated Biometrics Identification System
NPR: War On Terror Birthed Pentagon’s Automated Biometrics Identification System by Steve Inskeep (“NPR’s Steve Inskeep talks to investigative reporter Annie Jacobsen, author of the new book, First Platoon, about how the U.S. has employed the use of biometric data … Continue reading
D.V.I.: Failure to put on proof at suppression hearing leads to show cause order to defense
Defendant filed a motion to suppress a statement and a search. At the hearing, however, the search wasn’t challenged. Defendant has to show cause why that part of the motion should not be denied. United States v. Henry, 2021 U.S. … Continue reading
N.D.Ohio: Regular borrowing of a vehicle gave def standing when he had it; affidavit “bare bones” so no GFE
Defendant’s regular borrowing of a vehicle gave him standing in the vehicle when he was driving it. “In sum, the affidavit in support of the December 8, 2017 search warrant fails to provide the requisite ‘“nexus between the place to … Continue reading
D.Nev.: Running wants or warrants on a sex offender involved in a stop didn’t violate 4A
Running wants or warrants on a sex offender involved in a stop didn’t violate the Fourth Amendment. United States v. McCowan, 2021 U.S. Dist. LEXIS 6500 (D. Nev. Jan. 13, 2021).* The affidavit for the search warrant shows probable cause. … Continue reading
OR: With recreational MJ, the odor of MJ in a rental car is not RS for trafficking
In a recreational marijuana state, “We are unprepared to say that, as to any person driving a rental car on a public highway in Oregon that is also used by drug traffickers, any odor of marijuana gives rise to reasonable … Continue reading
CA4: Ptf’s claim the statute he was arrested under was unconstitutional is barred by DeFillippo
Plaintiff’s claim that his arrest and search was invalid because the statute under which he was stopped and arrested was unconstitutional is barred by Michigan v. DeFillippo. Quigley v. City of Huntington, 2021 U.S. App. LEXIS 760 (4th Cir. Jan. … Continue reading
Cal.4: Drunk in public with a vehicle justifies a vehicle search under the automobile exception
Drunk in public with a vehicle justifies a vehicle search under the automobile exception. People v. Sims, 2021 Cal. App. LEXIS 33 (4th Dist. Jan. 12, 2021). A search warrant that resulted in a search where three buildings were on … Continue reading
CNS: LA Police Commission Adopts Oversight Measures for Facial Recognition Tool
CNS: LA Police Commission Adopts Oversight Measures for Facial Recognition Tool by Martin Macias Jr. (“The LAPD’s promise of robust oversight for facial recognition technology in police work hasn’t quelled concerns from civil liberties groups that the tools will perpetuate … Continue reading
E.D.N.Y.: Ptf’s injunction request against future illegal searches speculative
“Even if plaintiff had correctly labeled this claim as a Fourth Amendment one, he could not show that he is entitled to a preliminary injunction. ‘Speculative, remote or future injury’ is not enough to show irreparable harm. Phelan v. Sullivan, … Continue reading
CA8: Creighton U. security officers are private actors
Creighton University security officers are private actors in seizing and searching defendant. They did not act in concert with any law enforcement agency, and they called the police to take defendant away. United States v. Avalos, 2021 U.S. App. LEXIS … Continue reading
CA8: Direction to stay in car during a traffic stop wasn’t a seizure
Direction to defendant to stay in his car during a stop was not a separate seizure. United States v. Warren, 2021 U.S. App. LEXIS 701 (8th Cir. Jan. 12, 2021). There was probable cause for defendant’s arrest. Officers bought drugs … Continue reading
W.D.N.C.: Def counsel not ineffective for not arguing Carpenter protects bank records because it doesn’t
There is no reasonable expectation of privacy in bank records such that the government needed a warrant to get them. Defense counsel wasn’t ineffective for not arguing that there was such an interest. “Carpenter did not overrule Miller but merely … Continue reading
GA: When there is PC for an arrest, the validity of an arrest warrant is moot
There was probable cause for defendant’s arrest, so the validity of the arrest warrant doesn’t matter. Harper v. State, 2021 Ga. LEXIS 2 (Jan. 11, 2021). Defendant’s claim of lack of probable cause is really just an effort to construe … Continue reading