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- E.D.Va.: Must plead prejudice when delay of a cell phone SW is alleged
- CA: Avoiding the police in a high crime area isn’t RS
- CA7: Jail officials holding plaintiff under a valid court order aren’t liable for not releasing him sooner after a sentencing error
- 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
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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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Category Archives: DNA
NY: Ex ante DNA warrant process didn’t challenge PC and it was otherwise reasonable
In New York, a search warrant for corporeal evidence allows the target to contest the probable cause before issuance and execution of the warrant on reasonableness and probable cause. Here, defendant didn’t challenge the probable cause, and the warrant could … Continue reading
DE: Lack of police experience in finding touch DNA on firearms precludes finding PC here
For probable cause to seek DNA from defendant to link him to clothing worn in a crime, the police don’t need DNA to start. The officer’s experience here that DNA has been found in the past with clothing is not … Continue reading
ABA: A Practitioner’s Guide to Police Use of Genealogy Sites and the Fourth Amendment
ABA: A Practitioner’s Guide to Police Use of Genealogy Sites and the Fourth Amendment by Antony Barone Kolenc (in Criminal Justice magazine)
NY Times: Why a Data Breach at a Genealogy Site Has Privacy Experts Worried
NY Times: Why a Data Breach at a Genealogy Site Has Privacy Experts Worried by Heather Murphy (“Nearly two-thirds of GEDmatch’s users opt out of helping law enforcement. For a brief window this month, that didn’t matter.”):
FL1: FDLE’s failure to remove DNA after acquittal in prior case wasn’t a separate 4A violation nor was it subject to the exclusionary rule
FDLE’s failure to remove defendant’s DNA from the state CODIS database after his acquittal in a prior case wasn’t a Fourth Amendment violation nor subject to the exclusionary rule to keep it from being used in this case. The evidence … Continue reading
RI: Reasonable use of force to take inmate’s DNA under SW wasn’t grounds for suppression
The trial court erred in granting defendant’s motion to suppress the taking of his DNA by force under a search warrant when he refused to cooperate. He already had a reduced expectation of privacy in the jail, and the state’s … Continue reading
Fox5NY: DNA from coronavirus face mask leads to arrest in child molestation case, police say
Fox5NY: DNA from coronavirus face mask leads to arrest in child molestation case, police say by Kelly Taylor Hayes (“A face mask used amid the coronavirus pandemic helped police in California arrest a man suspected in a child molestation case … Continue reading
NE: Indicia linking def to premises searched could be subject of SW; affidavit didn’t need a detailed explanation of CODIS for magistrate
Obtaining defendant’s CSLI in February 2017, 16 months before Carpenter, was in good faith and reasonable. That information could thus be used in an affidavit for search warrant for his house because probable cause was otherwise shown for it. Also, … Continue reading
MA: DNA swab taken by consent during arrest without PC is suppressed, but state can do it over on remand
Defendant was arrested for murder, handcuffed and taken in for interrogation, all without probable cause. His statement was suppressed, and the state fails to show that obtaining his buccal swab during this time would clear even the low bar for … Continue reading
TN: DNA sample was subject to inevitable discovery where def was subjected to another one for a homicide two years later
Defense counsel wasn’t ineffective for not objecting to a DNA sample where defendant claimed it exceeded his consent. The post-conviction court found that it didn’t. Moreover, discovery was inevitable because another DNA sample was validly taken two years later as … Continue reading
S.D.Ga.: There is no per se staleness, and how is DNA stale?
There is no per se staleness. A new warrant for defendant’s DNA alleging it was previously drawn in 2005 and 2007 and matched wasn’t stale. How does DNA change? It doesn’t. United States v. Williams, 2020 U.S. Dist. LEXIS 38735 … Continue reading
NPR: Genealogy Websites Help To Solve Crimes, Raise Questions About Ethics
NPR: Genealogy Websites Help To Solve Crimes, Raise Questions About Ethics by Kate Payne (“An Iowa man has been found guilty of a 40-year-old murder after he was tracked down through a family genealogy website. Many privacy concerns have been … Continue reading
D.Nev.: Affidavit for SW for DNA showed PC by parallels between two crimes and def
“The underlying facts in the affidavit compare the actions of Tualua with the actions of the people who committed the prior EZ Pawn robberies, which would allow the issuing judge to make his or her own conclusions. Under the totality … Continue reading
NBC News: Texas man close to exoneration after computer algorithm leads to new suspect
NBC News: Texas man close to exoneration after computer algorithm leads to new suspect by Erik Ortiz (“Lydell Grant was supposed to be in prison for murder. But an emerging form of DNA technology, which has also come under scrutiny, … Continue reading
Axios: Ancestry.com refused court request to give police DNA database access
Axios: Ancestry.com refused court request to give police DNA database access by Rebecca Falconer (“Ancestry.com refused to comply with a search warrant pushed by a Pennsylvania court for police to gain access to its database of about 16 million DNA … Continue reading
NYTimes: Opinion: DNA Collection at the Border Threatens the Privacy of All Americans
NYTimes: Opinion: DNA Collection at the Border Threatens the Privacy of All Americans by Daniel I. Morales, Natalie Ram and Jessica L. Roberts (“We’re one step closer to the ‘genetic panopticon’ that Antonin Scalia warned us about.”)
techdirt: DHS Move Ahead With Plan To Harvest DNA Samples From Nearly Everyone Detained By ICE And CBP Privacy
techdirt: DHS Move Ahead With Plan To Harvest DNA Samples From Nearly Everyone Detained By ICE And CBPPrivacy by Tim Cushing:
WaPo: You need a good reason to curb privacy. None exists for collecting DNA at the border.
WaPo: Editorial Board: You need a good reason to curb privacy. None exists for collecting DNA at the border. NEWS THIS MONTH that the U.S. government would start collecting DNA from people detained at the border seemed to sketch out … Continue reading