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- Lawfare: How Google’s Location History Program Could Upend Digital Surveillance Law
- CA6 disagrees with CA7 on de minimis injuries under § 1983 force cases
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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,
citations, and links -
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Congressional Research Service:
--Electronic Communications Privacy Act (2012)
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Section 1983 Blog -
"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: May 2023
D.Nev.: Affidavits for SWs don’t have to prove the underlying crimes
There was probable cause for the four search warrants here. “Much of Martinez’s arguments are based on the premise that the warrants are unsupported by probable cause because the affidavits did not prove the elements of the target crimes.” They … Continue reading
D.V.I.: Flyover of curtilage from navigable airspace was reasonable
Officers did a flyover of defendant’s home from navigable airspace and saw a marijuana grow. While he had a subjective reasonable expectation of privacy in the curtilage, not from 2000′. United States v. Flavius, 2023 U.S. Dist. LEXIS 92974 (D.V.I. … Continue reading
NJ: Disputes in the facts on appeal show trial court should have held a hearing
“[W]e are persuaded the conflicting statements of fact presented by the State and defendant establish disputes of material fact warranting a testimonial hearing. The State claimed the search was justified under the plain view exception to the warrant requirement. Thus, … Continue reading
NY: Second SW for phone a year later after first SW failed to show PC wasn’t timely
The first cell phone search warrant was rejected for lack of probable cause. It only provided a generic description of cell phones as repositories of potential evidence without linking it to this case. The phone was still in the evidence … Continue reading
GA: Not objecting to mention of “probation” search at trial was not IAC
Not objecting to defendant’s probation status where it came up as a probation search was not unreasonable. Plus, it would have otherwise come in. “Hutcheson’s probation status was thus necessary to complete the State’s story of the crime. Trial counsel’s … Continue reading
MI grants review in zoning drone case: Long Lake Twp. v. Maxon
Michigan SCt to set argument on whether it violates the Fourth Amendment to use a drone for aerial photography in zoning disputes. Long Lake Twp. v. Maxon, 2023 Mich. LEXIS 768 (May 24, 2023).* The issues: “(1) whether the appellee … Continue reading
D.Colo.: Bank records have no REP so they can be obtained for restitution purposes
There is no reasonable expectation of privacy in bank records, and the government can obtain them to enforce a restitution order. United States v. Osborn, 2023 U.S. Dist. LEXIS 90076 (D. Colo. May 23, 2023). Defendant doesn’t get a Franks … Continue reading
CA11: Three CIs with overlapping information corroborated each other
Three informants’ overlapping information corroborated one another such that establishing their veracity was unnecessary. The affidavit in support of the warrant contained enough indicia of probable cause that an officer’s reliance was not unreasonable as it sufficiently linked the residence … Continue reading
OH7: Officer taking the Fifth at suppression hearing because of other matters doesn’t prove Franks violation
At defendant’s suppression hearing, one of the officers was relieved of duty due to other misconduct, and he took the Fifth. On what remains in the affidavit and on the totality doesn’t otherwise show a Franks violation. State v. Hartung, … Continue reading
NYT: Here’s What Happens When Your Lawyer Uses ChatGPT
NYT: Here’s What Happens When Your Lawyer Uses ChatGPT by Benjamin Weiser (“A lawyer representing a man who sued an airline relied on artificial intelligence to help prepare a court filing. It did not go well.”):
M.D.Ga.: No right to challenge SW before execution
It isn’t apparent that there’s a right to challenge a search warrant before it is executed. (Rule 17 covers motions to quash subpoenas.) Even if there was, defendant doesn’t carry his burden. United States v. Crumpton, 2023 U.S. Dist. LEXIS … Continue reading
AF: Telling wife in jail call to delete a social media account AFOSI was looking to search was obstruction
While defendant was in pretrial confinement, he called his wife and instructed her to delete a social media account that the government was intending to search. This led to his obstruction charge. The call was monitored by the jail. United … Continue reading
CA4: Def gets remand of unexplained warrantless search condition on supervised release
The condition of supervised release that defendant submit to warrantless searches wasn’t explained to him or justified. Remanded. United States v. Davila, 2023 U.S. App. LEXIS 12714 (4th Cir. May 23, 2023). Plaintiff’s driving, observed by an officer and caught … Continue reading
CA6: Younger requires the federal case over an arrest or search be stayed, not dismissed
The district court improperly dismissed plaintiff’s case under Younger because of ongoing state proceedings it implicated. It should have stayed it instead. Neal El v. Showman, 2023 U.S. App. LEXIS 12604 (6th Cir. May 22, 2023). The Fourth Amendment does … Continue reading
CA8: SW issuing judge not “neutral and detached” just because he didn’t ask questions
A search warrant in Killeen, Texas was issued to look for evidence of a Hobbs Act murder in Lincoln, Nebraska. The affidavit combined information from Texas and Nebraska. There was potential confusion as to whose information was whose but it … Continue reading
Techdirt: Judge Tosses Evidence After Government Took More Than Three Years To Crack A Suspect’s Phone
Techdirt: Judge Tosses Evidence After Government Took More Than Three Years To Crack A Suspect’s Phone by Tim Cushing (“A robbery/kidnapping case allegedly implicating business owner and immigrant Evgeni Kopankov has resulted in the government losing the evidence it took … Continue reading
CA6: Misstatements in arrest warrant affidavit didn’t prejudice ptr or prevent state trial
In this 2254, without citing Stone v. Powell, the court holds on the merits of the Fourth Amendment claim that misstatements in the arrest warrant affidavit did not prejudice the petitioner because it would not have prevented the trial. Harris … Continue reading
CA6: Officer firing gun at a person he or she doesn’t know fired one, too, is excessive
Officers fired at plaintiff without knowing whether he was the one who fired a gun at them. The sound of racking a bullet into a gun’s chamber in the abstract was not enough. LeFtwich v. Driscoll, 2023 U.S. App. LEXIS … Continue reading