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Recent Posts
- GFR: Feds Demand Identity Of YouTube Users Who Watched Certain Videos
- W.D.Wash.: DNA warrant isssued with PC not quashed before execution
- S.D.Ohio: Defense of denial of possession in drug case meant no assertion of standing to challenge the search, so no IAC
- N.D.Okla.: Anticipatory tracking warrant for money counter is without authority and nexus is speculative even if not
- CA9: Supervised release condition of financial disclosure permitted under 18 U.S.C. § 3553(a) and didn’t violate 4A
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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)
--Overview of the Electronic Communications Privacy Act (2012)
--Outline of Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012)
--Federal Statutes Governing Wiretapping and Electronic Eavesdropping (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
TX1: Knock-and-announce violation doesn’t warrant suppression under Hudson
The CI was reliable and provided probable cause. A knock-and-announce violation doesn’t warrant suppression. Cleveland v. State, 2020 Tex. App. LEXIS 5829 (Tex. App. – Houston (1st Dist.) July 28, 2020):
D.Ore.: Illegibility of judge’s signature on SW not 4A violation
Just because the state trial judge’s signature was illegible doesn’t violate the Fourth Amendment. The judge’s name was stamped below. United States v. McElroy, 2020 U.S. Dist. LEXIS 132608 (D. Ore. July 24, 2020). Franks challenge fails: “Thus, the bottom … Continue reading
Colorado grants review of pole camera surveillance
“Petition for Writ of Certiorari GRANTED. EN BANC. [¶] Whether the court of appeals erred in concluding that video surveillance through a camera mounted to a utility pole constituted a warrantless search in violation of the Fourth Amendment.” People v. … Continue reading
CA6: Tasering resisting suspect is reasonable
Tasering a resisting suspect is reasonable, and the video shows it. Siders v. City of Eastpointe, 2020 U.S. App. LEXIS 23454 (6th Cir. July 24, 2020).* The controlled buy off defendant was clearly probable cause for the search warrant, so … Continue reading
CA9: Where first meeting violated 4A, second meeting 8 mo later tied to first was not attenuated
By the court: “The panel explained that when a confession results from certain types of Fourth Amendment violations, the government must go beyond proving that the confession was voluntary—it must also show a sufficient break in events to undermine the … Continue reading
CA6: Lack of minimal nexus is lack of PC and no GFE
The district court held the affidavit for drugs in defendant’s house was lacking nexus and probable cause for lack of good information and the good faith exception didn’t apply. Affirmed. United States v. Ward, 2020 U.S. App. LEXIS 23607 (6th … Continue reading
techdirt: Appeals Court Bashes Predictive Policing And The Judge Who Argued People In High Crime Areas Want Fewer Rights
techdirt: Appeals Court Bashes Predictive Policing And The Judge Who Argued People In High Crime Areas Want Fewer Rights by Tim Cushing;
CAAF: Devolution of M.R.E. 311(a) authority is a functional test; Lt.Col. overseas, and Maj. in charge of everything else
Devolution of authority from a commanding officer at a military installation from one to the Executive Officer during a six month deployment is governed by a functional analysis under M.R.E. 311(a). Here, the Major had authority in the absence of … Continue reading
D.Ore.: TRO granted against arrests in Portland of journalists and legal observers without PC
TRO granted in Portland protests against arrests of journalists and legal observers without probable cause. Index Newspapers LLC v. City of Portland, 2020 U.S. Dist. LEXIS 131672 (D. Ore. July 23, 2020):
NM: SW time limit to execute cell phone SW is from initial seizure, not the download
“[W]hen a warrant is issued to search an electronic device, that warrant is executed when the device is seized or the data is copied on-site, which must occur within Rule 5-211(C)’s ten-day time limit. Rule 5-211(C)’s ten-day time limit applies … Continue reading
W.D.Mo.: No const’l distinction between jailer monitoring jail calls and turning them over to prosecutors
There is no constitutional distinction between a jailer listening to calls and then forwarding them to prosecutors for use as potential evidence. United States v. Nesbitt, 2020 U.S. Dist. LEXIS 131220 (W.D. Mo. July 24, 2020). Officer’s statement that a … Continue reading
CA9: Hotel occupancy ends when manager kicks you out
“The district court correctly determined that Ford lacked standing to challenge the officers’ entry into the hotel room under the Fourth Amendment because any reasonable expectation of privacy Ford had in the room, which had been rented by Ford’s co-defendant … Continue reading
MA: Info there might be armed men holding a hostage inside justified entry
“In this case, the police had information that there might be armed men holding a woman in an apartment against her will. In the circumstances presented here, so long as the officers had ‘an objectively reasonable basis to believe’ that … Continue reading
M.D.Tenn.: Dashcam perspective may be different than officer’s
The dashcam video does not undermine the crediblity of the officer on the basis for the stop because the dashcam’s perspective may be different than the officer’s. United States v. Cart, 2020 U.S. Dist. LEXIS 130796 (M.D. Tenn. July 24, … Continue reading
KY declines to adopt a per se rule that a completed misdemeanor is not subject to a stop-and-frisk
Kentucky declines to adopt a per se rule that a completed misdemeanor is not subject to a stop-and-frisk because it is too difficult to apply in the field. K.H. v. Commonwealth, 2020 Ky. App. LEXIS 86 (July 24, 2020):
CO: Traffic stop was objectively reasonable even though officer cited wrong statute
Defendant’s stop was objectively reasonable, even though the officer cited the wrong statute. People v. Ambrose, 2020 COA 112, 2020 Colo. App. LEXIS 1384 (July 23, 2020). “[W]e need not address Salas’s argument that a slight delay to conduct a … Continue reading
The Atlantic: Nothing Can Justify the Attack on Portland
The Atlantic: Nothing Can Justify the Attack on Portland by Quinta Jurecic & Benjamin Wittes (“The question of whether these arrests are appropriate has a clear answer—at least in a nation that purports to live under the rule of law.”)
WaPo: The federal police in Portland don’t even understand what ‘arrests’ are
WaPo: The federal police in Portland don’t even understand what ‘arrests’ are by Prof. By Andrew Manuel Crespo (“The government cannot lawfully exercise its power of arrest if it doesn’t realize it is, in fact, arresting people in the first … Continue reading