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- 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
- 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
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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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--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: June 2020
CA6: QI denied officers who Tased a man for not getting out of his car fast enough; he had recent surgery and a colostomy bag
Plaintiff was Tased when he slowly got out of a car after officers flashed badges on him. He was recovering from surgery and had a colostomy bag and staples in his stomach. While the use of force does not require … Continue reading
CNN: Air Force inspector general investigating use of military aircraft to monitor protesters
CNN: Air Force inspector general investigating use of military aircraft to monitor protesters by Barbara Starr and Caroline Kelly:
OR: Fleeing police, wrecking car, and bailing out and running away was abandonment
Defendant fled from the police and wrecked his car and nearly totaled it, leaving it where it wrecked and running away. He sought to distinguish a state case from 1980 that predated Oregon’s expansion under the state constitution, but the … Continue reading
OR: Apparent authority to consent to search of contents of car here limited to his own stuff
There were two people in a van and a consent search was sought; the police needed to make sure that one didn’t consent to search of property under control of the other. “As a matter of law, actual authority over … Continue reading
D.Mass.: BitTorrent software still subject to third-party doctrine despite its technical sophistication
Defendant claims that BitTorrent downloading is so sophisticated that the third-party doctrine of Smith and Miller should not apply. The court takes the argument seriously but rejects it. Carpenter doesn’t undermine the third-party doctrine, and the motion to suppress is … Continue reading
D.Mont.: Drug dog’s reliability doesn’t need to be shown in SW application
A search warrant application does not have to support the reliability of a drug dog used to establish the probable cause under Harris. The remedy is a motion to suppress. “As this Court reads it, Harris is a reiteration of … Continue reading
N.D.Cal.: With California’s legalization of small amounts of marijuana, law enforcement can’t use federal criminal law as an excuse to search
Legalization of recreational marijuana in California makes possession of small quantities legal, despite federal criminal law leaving marijuana in schedule I, and thus denies law enforcement the ability to search for it. United States v. Talley, 2020 U.S. Dist. LEXIS … Continue reading
D.Me.: CI’s prediction of future events enhanced veracity
There was probable cause for the search, and the CI’s veracity was enhanced by the CI’s prediction of future conduct. United States v. Stevenson, 2020 U.S. Dist. LEXIS 105420 (D. Me. June 17, 2020). “While Mendoza-Ricardo argues that the purpose … Continue reading
D.Nev.: Lack of officer reports of facts for PC to arrest goes only to their credibility, but they still were
There was ample probable cause for defendants’ arrest and stopping their car to do it despite the lack of reports. That goes to credibility, and the court finds it wanting. United States v. Davis, 2020 U.S. Dist. LEXIS 105973 (D. … Continue reading
E.D.Mo.: Slightly speeding is still speeding and supports a stop
Defendant was slightly speeding and does not dispute it. The gravity of the traffic offense doesn’t matter on the reasonableness of the stop. United States v. Betances, 2020 U.S. Dist. LEXIS 105632 (E.D.Mo. May 18, 2020):
NY2: CBP had RS for computer search for CP on def’s return through customs
Defendant was an airline pilot. HSI conducted a child pornography search at a residence in Texas that had an IP address associated with defendant, but none was found. Reasonably believing he had child pornography on his devices, they found he … Continue reading
Cato.org: Supreme Court Refuses to Reconsider Qualified Immunity
Cato.org: Supreme Court Refuses to Reconsider Qualified Immunity:
CA11: Ptfs failed to prove pretext for arrest even if the officer was shown otherwise to maybe be racist
Plaintiffs tried to show that the defendant officer was racist, and their arrest was pretextual, relying in part on pretext. However, they fail on that score for lack of proof. After plaintiffs’ arrest the case was dismissed, and “Owens later … Continue reading
S.D.N.Y.: Strong evidence of ongoing sexual abuse of 13 year old was exigency for warrantless entry
The court finds no consent but probable cause and exigent circumstances from ongoing sexual abuse of a 13 year old girl. “In the analysis that follows, the Court considers the circumstances confronting the officers at the moment they entered Hernandez’s … Continue reading
TN: Motion to suppress wasn’t decided but state didn’t offer evidence at trial until defense opened the door; admitted as 404(b)
The state sought a search warrant for cell phones and then lost the product before trial. They still had the phones and looked again without a warrant just before trial. Defendant moved to suppress but argued that the phones weren’t … Continue reading
D.Utah: Not having rental agreement in hand permits officer to inquire of rental car company during stop
Defendant’s inability to produce a rental agreement for his car was a factor in reasonable suspicion and permitted the officer to call the rental car company to check. He also determined that defendant drove to California with a short turnaround. … Continue reading
W.D.N.Y.: Inevitable discovery obviated def’s Franks challenge
A Franks hearing wasn’t required because the court finds that, even if Franks could be satisfied here, the evidence was inevitably found. United States v. Chapline, 2020 U.S. Dist. LEXIS 104509 (W.D. N.Y. June 12, 2020). It was reasonable to … Continue reading
M.D.Fla.: Exclusionary rule applies to overseizure of tracking information, but blanket suppression not required
There was probable cause for issuance of historical cell phone tracking information and connecting defendant to the phone. The affidavit, however, only sought information for one day, but the warrant covered seven days. The overseizure is suppressed because the exclusionary … Continue reading
M.D.Pa.: Probation search of cell phone was reasonable even though a later forensic search was conducted
A probation search of defendant’s cell phone was based on reasonable suspicion that defendant violated his conditions of supervised release. The later warrantless forensic review of his phone was unreasonable. United States v. Brownlee, 2020 U.S. Dist. LEXIS 103839 (M.D. … Continue reading
WSJ: How the Warren Court Enabled Police Abuse
WSJ: How the Warren Court Enabled Police Abuse by David B. Rivkin Jr. and Andrew M. Grossman (“‘Qualified immunity’ lets cops avoid accountability. It’s an invention of the liberal chief justice.”):