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Recent Posts
- 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
- N.D.Ohio: Refusing discovery on 4A grounds in forfeiture case results in no standing
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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)
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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: January 2021
The Intercept: How The LAPD And Palantir Use Data To Justify Racist Policing
The Intercept: How The LAPD And Palantir Use Data To Justify Racist Policing by Mara Hvistendahl (“In a new book, a sociologist who spent months embedded with the LAPD details how data-driven policing techwashes bias.”)
CA8: Officer wins two § 1983 cases in same day from E.D. Mo., Cape Girardeau
The officer had cause for defendant’s stop for a broken taillight and then found a warrant for his arrest. “Wood also alleges that after the fact, Wooten fabricated evidence about the arrest (and then invoked his Fifth Amendment right about … Continue reading
E.D.Mich.: PC a close call, so GFE applies
“Ultimately, the Court need not decide which side of the Ramirez-Merriweather line [of probable cause] this case falls. It suffices to say that, especially because the search warrant affidavit makes no mention of any communications involving Jackson’s cell phone, it … Continue reading
M.D.La.: Driveway here was not Curtilage “intimately tied to the home”
Defendant’s driveway was not Curtilage “intimately tied to the home.” United States v. Martinez-Velazquez, 2021 U.S. Dist. LEXIS 15723 (M.D. La. Jan. 28, 2021):
M.D.Tenn.: SW affiants should err on side of more information, not less
“[T]he warrant affidavit established probable cause to search the Residence, based on a combination of the smell of marijuana emanating from the Residence and the marijuana stem recovered in the trash pull. The affidavit reveals that three different MNPD officers … Continue reading
CA1: Defense must argue cost v. benefits of exclusionary rule or issue is likely waived
When invoking the exclusionary rule, the defendant necessarily has to show that the deterrence value of exclusion outweighs the costs of exclusion. United States v. Cruz-Ramos, 2021 U.S. App. LEXIS 2284 (1st Cir. Jan. 27, 2021), n. 9:
E.D.Wis.: No REP as to pole camera surveillance, one in an apt building hallway
Two surveillance cameras were installed; one on a pole, one in a hallway of an apartment building. Defendant, a visitor, had no reasonable expectation of privacy. A codefendant already litigated this motion and lost, and he should have acknowledged the … Continue reading
Pre-Carpenter CSLI was in good faith
The CSLI order here pre-dated Carpenter, and it was based on probable cause. Since Carpenter wasn’t retroactive, the motion to suppress is denied. United States v. Stamat, 2021 U.S. Dist. LEXIS 14268 (D.Minn. Jan. 26, 2021).* Defendant’s CSLI was obtained … Continue reading
AR: Adding to PC argument on appeal wasn’t preserved
Defendant’s specific argument on appeal about the lack of probable cause was not presented to the trial court, so it’s not preserved for appeal. In a Franks part of the motion, the affidavit has to be read as a whole, … Continue reading
CA4: Not every fact an affiant knows needs to go in a SW affidavit for Franks
The omission of some facts didn’t make out a Franks violation. Affiants for search warrants are not required to itemize every fact they know and omission of some, the nonmaterial, doesn’t make out a Franks violation nor undermine the probable … Continue reading
ABAJ: Immigration lawyer sues over seizure of his cellphone at airport
ABAJ: Immigration lawyer sues over seizure of his cellphone at airport by Debra Cassens Weiss (“Texas immigration lawyer Adam A. Malik has sued the U.S. Department of Homeland Security for seizing and retaining his iPhone when he returned to the … Continue reading
D.Minn.: Seeking “four corners review” of affidavit for SW isn’t a proper motion to suppress
A generalized motion to suppress merely seeking “four corners review” of probable cause is insufficient. “Defendant’s failure to specify the basis for his suppression motion and provide any argument in support thereof warrants denial alone.” “Defendant’s motion also fails because … Continue reading
E.D.Pa.: Can’t relitigate denial of motion to suppress in motion for new trial
A motion for new trial is not the place to relitigate denial of a motion to suppress. United States v. Mack, 2021 U.S. Dist. LEXIS 14024 (E.D. Pa. Jan. 16, 2021). There was reasonable suspicion on the totality for defendant’s … Continue reading
N.D.Ga.: “Any and all” in a SW is severable to maintain particularity
Catch-all language, like “any and all” in a list of things to be seized, is severable to narrow the warrant. United States v. Qadri, 2021 U.S. Dist. LEXIS 13975 (N.D. Ga. Jan. 26, 2021). “Based on the totality of the … Continue reading
Reason: Cops Must Destroy Illegal Surveillance Videos From Spa Visited by Robert Kraft
Reason: Cops Must Destroy Illegal Surveillance Videos From Spa Visited by Robert Kraft by Elizabeth Nolan Brown (“Authorities ‘shall destroy the videos unlawfully obtained through the surveillance of the Orchids of Asia Day Spa,’ a federal judge says.”)
CA9: When the 4A question isn’t settled, the alleged 4A violation can’t be egregious in immigration cases
“In immigration proceedings, the exclusionary rule applies to evidence obtained in violation of the Fourth Amendment only when the violation is egregious. … Petitioners bear the burden of making a prima facie showing of an egregious Fourth Amendment violation. … … Continue reading
CA4: When lower court decides both PC and GFE, on appeal either one can be decided
When the district court decides both probable cause for issuance of the warrant and the good faith exception applies, the court of appeals need only decide one; here good faith. “Because our review of the record demonstrates that the affidavit … Continue reading
A.F.: Particularity and avoiding general warrants in electronic searches
“In charting how to apply the Fourth Amendment to searches of electronic devices, we glean from our reading of the case law a zone in which such searches are expansive enough to allow investigators access to places where incriminating materials … Continue reading
LA: RS was “close question,” and evidence supports conclusion
The trial court found the reasonable suspicion close, and it concluded there was. “The testimony and evidence support the trial’s court’s finding that Zimmerman had reasonable suspicion of possible criminal activity to extend the stop to allow a canine to … Continue reading