- IL: Circumstances made SW affidavit admissible at trial
- Professional Responsibility in Criminal Defense Practice (4th ed. 2023) now on Westlaw
- IN: Fundamental (plain) error of S&S claims requires the evidence be fabricated, not just unconstitutionally obtained
- USA Today: A camera mounted on a light pole took video of police beating Tyre Nichols. What to know about ‘SkyCop.’
- Galveston Co. Daily News: Galveston SWAT team wrecks wrong house in search for wrong suspect
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Fourth Amendment cases,
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"If it was easy, everybody would be doing it. It isn't, and they don't."
“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!”"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."
---Pepé Le Pew
—Johnson v. United States, 333 U.S. 10, 13-14 (1948)
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Category Archives: Social media warrants
Because there is no reasonable expectation of privacy in a prison or in a cell phone in prison, a contraband cell phone can be wiretapped without a Title III warrant. United States v. Bash, 2022 U.S. Dist. LEXIS 180680 (E.D. … Continue reading →
There is no reasonable expectation of privacy in the “tracking information” of underlying data in one’s social media accounts or time and location information of postings. Moreover, Facebook post tracking information is more voluntary and not fulltime tracking like CSLI … Continue reading →
The USMJ hearing the motion to suppress in this case was earlier an AUSA in the office prosecuting it. She had nothing to do with this case, so recusal is not required. (“Neutral and detached” never mentioned.) United States v. … Continue reading →
Drug paraphernalia seen from outside the vehicle before sticking a flashlight in the window was a valid plain view. United States v. Johnson, 2022 U.S. Dist. LEXIS 149401 (E.D. Va. Aug. 19, 2022).* There was probable cause for plaintiff’s prosecution, … Continue reading →
The warrant for the entirety of defendant’s Instagram account was not a general search. United States v. Smith, 2022 U.S. Dist. LEXIS 147892 (W.D. Mo. Aug. 18, 2022). Seeing a handgun protruding from defendant’ waistband as he walked down the … Continue reading →
A cell phone dump after a search warrant wasn’t necessarily overbroad, and didn’t show it. “More particularity was impractical, and was not required.” United States v. Nelson, 2022 U.S. Dist. LEXIS 125994 (D. Md. July 15, 2022). Officers who used … Continue reading →
A law enforcement officer’s creation of a ghost Facebook account to access defendant’s private pages violated no reasonable expectation of privacy. United States v. Randall, 2022 U.S. Dist. LEXIS 122615 (W.D. Wis. July 12, 2022), and more elaborate than I … Continue reading →
Defendant’s Facebook page was subject to being searched because there were interactions on it with a coconspirator, and that showed probable cause. United States v. Daprato, 2022 U.S. Dist. LEXIS 78626 (D.Md. May 2, 2022).* “Frey’s motion to suppress evidence … Continue reading →
Defendant had the burden to show the extent of his privacy interest in his Instagram account. Were the parts to be evidence obtained from the private or public parts? He doesn’t show. The Terms of Service would limit it in … Continue reading →
Bloomberg: Facebook Data Release to Cops Evades Fourth Amendment Limits Deep Dive by Jake Holland (“A Ninth Circuit ruling that allows tech companies to turn over an individual’s online account data to law enforcement for preservation without violating the Fourth … Continue reading →
A communication data warrant requires probable cause. Facebook’s data in hand is not “intercepted” for wiretapping purposes. Facebook, Inc. v. State, 2022 N.J. Super. LEXIS 40 (Apr. 4, 2022):
A civil investigative subpoena to Facebook for information about posters of Covid misinformation was not unreasonable. n.3: “Meta suggests that the Fourth Amendment requires the District to obtain a search warrant to get this information. … One sufficient response is … Continue reading →
Twitter deactivated defendant’s account for violation of its terms of service and reported him to NCMEC. Defendant had no reasonable expectation of privacy in the files Twitter had preserved on him. “The Court finds under the circumstances of the case … Continue reading →
An officer sending defendant a SnapChat “friend” request which defendant accepted created no reasonable expectation of privacy in his SnapChat account. Thereafter, defendant posted a video of him with a firearm, and police looked for him and arrested him for … Continue reading →
An officer found defendant selling fake IDs via Facebook. “The Facebook Warrant contained posts from this account indicating that the account-operator was selling fake IDs, including by specifying that the IDs could help people avoid warrants, fines, and jail time. … Continue reading →
CA11: FBI’s negligence in taking six months to search def’s truck and computers did not require suppression
“Bruce Nicholson, an Alabama man convicted of federal child sex crimes and sentenced to life in prison, challenges his conviction on direct appeal. The main question in this criminal appeal is, as it often is, whether a criminal should ‘go … Continue reading →
Collateral estoppel bars plaintiff’s suit against officers who arrested and searched him. He lost on the same search issue in state court, and that’s order is final. Bertaux v. Aurora Police Dep’t, 2022 U.S. Dist. LEXIS 11260 (N.D.Ill. Jan. 21, … Continue reading →
Facebook’s passing on suspected child pornography on its platform is a private search. Moreover, Facebook’s terms of service show a lack of a reasonable expectation of privacy for child porn. United States v. Montijo, 2022 U.S. Dist. LEXIS 4577 (M.D.Fla. … Continue reading →
The officer violated no reasonable expectation of privacy of defendant by creating a fictitious Facebook account and then getting “friended” by defendant. Then on defendant’s Facebook account, the officer saw that defendant parolee had firearms. That led to a valid … Continue reading →
“[T]he totality of the circumstances described in the search warrant affidavit establishes the requisite nexus between Kyle Clark’s Facebook account and evidence of suspected drug-trafficking activities.” United States v. Clark, 2021 U.S. Dist. LEXIS 229926 (D.Minn. Dec. 1, 2021).* The … Continue reading →