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- techdirt: The Problems Of The NCMEC CyberTipline Apply To All Stakeholders
- W.D.Ark.: Parole search waiver moots lack of PC argument
- AR: RS shown for boating while intoxicated stop
- W.D.Mo.: Wrong address in SW wasn’t fatal where right house was searched
- NY: Failure to show independent source for officer’s observation of def required reversal
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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)
Website design by Wally Waller, Little Rock 
Monthly Archives: May 2021
CA10: Nexus for CP can logically move when def does
Police had probable cause defendant uploaded child pornography from home. Then he moved. It was reasonable to assume his computers went with him to the new address, so nexus was sufficiently shown for probable cause there. United States v. Kilgore, … Continue reading
D.N.J.: Officers pointing guns at a group of men wasn’t necessarily a seizure
Officers pointing their sidearms at a group of men wasn’t necessarily a seizure. At any rate, it was with reasonable suspicion. “Despite Williams’ argument to the contrary …, the officers’ display of their guns, without any physical contact, did not … Continue reading
CA3: No suppression hearing needed on the mere chance something will turn up
The request for an evidentiary hearing on a suppression motion based on the mere hope something might turn up is really just speculation and should be denied. United States v. Dfouni, 2021 U.S. App. LEXIS 15091 (3d Cir. May 19, … Continue reading
CA11: Electronic search condition was discretionary for “chronic lawbreaker”
An electronic search condition for supervised release was not an abuse of discretion where defendant was an admitted “chronic lawbreaker” and not even a sex offender. United States v. Taylor, 2021 U.S. App. LEXIS 15125 (11th Cir. May 21, 2021):
AZ: Even if NCMEC was not private actor, it didn’t expand the prior private search
In Arizona, Fourth Amendment claims are decided first, then state constitutional claims. Google+, acting completely on its own, searched defendant’s photos folder stored with there. Moreover, it was only shown to be protecting its private business interests, not aid the … Continue reading
CA6: SW not required to tear down a condemned building
Once a building is legally condemned, a separate search warrant isn’t required to tear it down. It is then a reasonable seizure. Keene Grp., Inc. v. City of Cincinnati, 2021 U.S. App. LEXIS 15074 (6th Cir. May 20, 2021):
NY1: Pretrial detainee doesn’t have equal protection right not to have jail calls recorded
A pretrial detainee at Riker’s Island didn’t have an equal protection right or a reasonable expectation of privacy in his telephone calls from the jail. People v. Jennings, 2021 NY Slip Op 03262, 2021 N.Y. App. Div. LEXIS 3363 (1st … Continue reading
NY3: Dog sniff of person requires RS
On a matter of first impression, NY’s Third Department concludes that reasonable suspicion is required for a dog sniff of the person, and here there was reasonable suspicion. People v. Butler, 2021 NY Slip Op 03222, 2021 N.Y. App. Div. … Continue reading
WaPo: The latest feature on crime app Citizen raises alarms as it accuses the wrong man of arson
WaPo: The latest feature on crime app Citizen raises alarms as it accuses the wrong man of arson by Rachel Lerman & Heather Kelly (“Citizen, a popular app that tracks crimes in cities, offered a $30,000 reward this weekend for … Continue reading
CBS19 News: State data shows Black drivers are most pulled over during traffic stops
CBS19 News: State data shows Black drivers are most pulled over during traffic stops by Macy Moors (“When it comes to African-American drivers, things shift. Black drivers account for 30 percent of traffic stops but only make up 19 percent … Continue reading
WaPo: Giuliani’s legal profession does not shield him from seizure of electronics, prosecutors say
WaPo: Giuliani’s legal profession does not shield him from seizure of electronics, prosecutors say by Shayna Jacobs (“Rudolph W. Giuliani, the onetime personal attorney to former president Donald Trump, cannot claim his profession should have shielded him from the search … Continue reading
WaPo: Police told a man a container in his car tested positive for drugs. It was his daughter’s ashes.
WaPo: Police told a man a container in his car tested positive for drugs. It was his daughter’s ashes. By Andrea Salcedo (“Dartavius Barnes sat handcuffed inside a squad car in Springfield, Ill., looking confused as police told him they’d … Continue reading
CA6: Social workers subject to 4A, but these get QI
Social workers are subject to the Fourth Amendment. Here, they used a court order to enter plaintiff’s home. The order wasn’t clear on what information that brought it about or that it was particular. Nevertheless, the social workers get qualified … Continue reading
N.D.Ga.: Two year delay in searching seized cell phone not unreasonable
Defendant’s cell phone was seized in April 2017 but not finally searched until April 2019. This was still reasonable under Rule 41. United States v. Dixon, 2021 U.S. Dist. LEXIS 95041 (N.D. Ga. Apr. 15, 2021):
OR: Lifting jail curtain to see def in jail bathroom was not violation of State Const. or 4A
Partially lifting a curtain in jail to observe defendant in the bathroom was not a violation of his reasonable expectation of privacy under the State Constitution nor the Fourth Amendment. State v. Taplin, 311 Or. App. 542, 2021 Ore. App. … Continue reading
N.D.Ohio: 5 yo child wandering in apt parking lot at 2:30 am was exigency when door was open to apt
A five year old boy found wandering at 2:30 am in an apartment building parking lot was exigency for the police to further open defendant’s partially open door when the apartment was found. United States v. Shorter, 2021 U.S. Dist. … Continue reading
techdirt: DoD Is Buying Domestic Internet Metadata From Data Brokers
techdirt: Defense Department Is Buying Domestic Internet Metadata From Data Brokers by Tim Cushing (“Joseph Cox broke the news for Motherboard late last year: the US military was also making use of location data purchased from data brokers, joining a … Continue reading