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- Lawfare: How Google’s Location History Program Could Upend Digital Surveillance Law
- CA6 disagrees with CA7 on de minimis injuries under § 1983 force cases
- MO: No duty of care owed by police to fleeing motorist
- D.P.R.: Indictment for possession of switches to convert handguns to machine guns justified vehicle search when defendant was stopped
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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: April 2023
D.S.C.: Younger doctrine precludes habeas action against pending state criminal case, here over the search
Petitioner’s 2241 habeas action against an ongoing state prosecution challenging the search is barred by Younger. Johnson v. Warden Marlboro Cty. Det. Ctr., 2023 U.S. Dist. LEXIS 67605 (D.S.C. Apr. 17, 2023). Defendant’s girlfriend accidentally saw child pornography on defendant’s … Continue reading
E.D.Wis.: “Whistleblower” is still a CI whose story must be corroborated
A business fraud “whistleblower”’s statement was too conclusory to show probable cause. Franks hearing granted. United States v. Schampers, 2023 U.S. Dist. LEXIS 68205 (E.D. Wis. Apr. 19, 2023). Defendant was driving back and forth between Plattsburgh NY and Burlington … Continue reading
Reason: What Would An Originalist Fourth Amendment Require?
Reason: What Would An Originalist Fourth Amendment Require? by Orin S. Kerr
CA4: “[T]he ability to execute a search does not necessarily imply power to execute a search warrant.”
“[T]he ability to execute a search does not necessarily imply power to execute a search warrant.” Osmon v. United States, 2023 U.S. App. LEXIS 9177 (4th Cir. Apr. 18, 2023). Defendant’s Franks motion fails because there’s no offer of proof … Continue reading
E.D.N.Y.: What’s the burden under 18 U.S.C. § 1345 v. SW issuance? Preponderance or PC?
This is a patent action involving an AR-15 trigger mechanism that can convert the gun to a machine gun. The government got involved to enjoin it. The defendants seek a transfer to W.D.Tex. which is denied. The court addresses 18 … Continue reading
D.Haw.: Covid quarantines were not 4A seizures
Hawai’i’s Covid quarantines were not Fourth Amendment seizures to aid government intrusions. For Our Rights v. Ige, 2023 U.S. Dist. LEXIS 66956 (D. Haw. Apr. 17, 2023). Exigent circumstances for warrantless police action is based on an objective standard. United … Continue reading
CA9: Mere typo in SW affidavit doesn’t support Franks challenge
Defendant’s Franks challenge was conclusory and based on mere typographical errors. United States v. Howard, 2023 U.S. App. LEXIS 9069 (9th Cir. Apr. 17, 2023). Habeas petitioner’s admission of procedural default of his Fourth Amendment claim was an admission there … Continue reading
CA4: CI’s 911 call showing stress of a startling event was reliable
A CI’s 911 call “‘under the stress of excitement caused by a startling event’ (making the call less likely to be preplanned),” was reliable enough for reasonable suspicion. Torres v. Ball, 2023 U.S. App. LEXIS 9076 (4th Cir. Apr. 17, … Continue reading
PA: SW for flashlight app data on cell phone sustained
The affidavits for search warrant for this cell phone were overbroad as to what was sought lacking probable cause except for location data and use of the flashlight function. Defendant was accused of using the flashlight on his cell phone … Continue reading
C.D.Cal.: Mere seizure of a firearm not per se a 2A violation
“‘The mere occurrence of a firearm seizure during a traffic stop, however, is not enough to establish a Second Amendment violation. Police seize and confiscate firearms routinely, and this Court will not presume that each and every one of those … Continue reading
D.P.R.: Mere presence of FBI at USPO search didn’t make PO ‘stalking horse’
Mere presence of FBI and other law enforcement officers at USPO’s search based on reasonable suspicion did not make the PO a “stalking horse” for the police. United States v. Borges-Sánchez, 2023 U.S. Dist. LEXIS 66017 (D.P.R. Apr. 14, 2023). … Continue reading
CA4: Slightly outdated information police gathered def lived at place in SW still made it in good faith
Officers gathered information that defendant’s son lived in his house and presented it for a search warrant. After the search they found out he didn’t. The warrant was still issued in good faith. United States v. Jordan, 2023 U.S. App. … Continue reading
MI: Trees on undeveloped land were not “effects” for 4A
A city ordinance regulating trees was not a Fourth Amendment seizure because the trees were not on the curtilage of a home and weren’t independently subject to the Fourth Amendment. (Otherwise, a taking occurred, and that’s way outside the scope … Continue reading
M.D.Fla.: Geofence SW decided on GFE alone
In this Hobbs Act robbery case, ATF got a geofence warrant to attempt to isolate who was committing a string of robberies in the Tampa Bay area. Instead of even considering the merits, the court goes directly to the good … Continue reading
CA6: Entry onto driveway didn’t violate curtilage
Officers’ entry onto plaintiff’s driveway did not violate curtilage. Habich v. Wayne Cty., 2023 U.S. App. LEXIS 8868 (6th Cir. Apr. 12, 2023). No reasonable expectation of privacy in the contents of trash cans left at the curb for collection. … Continue reading
E.D.Pa.: Homeowner can be handcuffed during home search without his being arrested
Having the homeowner in handcuffs during a search of his house and then releasing him when done is reasonable under Michigan v. Summers. Armstrong v. Gretsky, 2023 U.S. Dist. LEXIS 63028 (E.D. Pa. Apr. 11, 2023). Defendant parolee tried to … Continue reading
AR: Failure to argue against GFE below bars argument on appeal
Failure to challenge application of the good faith exception in the trial court on running the LPN through insurance database precludes challenging it on appeal. Erby v. State, 2023 Ark. App. 220, 2023 Ark. App. LEXIS 211 (April 12, 2023). … Continue reading