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ABA Journal Web 100, Best Law Blogs (2017); ABA Journal Blawg 100 (2015-16)
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© 2003-20,
online since Feb. 24, 2003
WebPage Visits: real non-robot hits since 2010; approx. 25k posts since 2003~~~~~~~~~~~~~~~~~~~~~~~~~~
Fourth Amendment cases,
citations, and linksLatest Slip Opinions:
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FDsys, many district courts, other federal courts
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To search Search and Seizure on Lexis.com $Research Links:
Supreme Court:
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Solicitor General's site
SCOTUSreport
Briefs online (but no amicus briefs)
Oyez Project (NWU)
"On the Docket"–Medill
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General (many free):
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Lexis.com $
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F.R.Crim.P. 41
www.fd.org
Federal Law Enforcement Training Center Resources
FBI Domestic Investigations and Operations Guide (2008) (pdf)
DEA Agents Manual (2002) (download)
DOJ Computer Search Manual (2009) (pdf)
Stringrays (ACLU No. Cal.) (pdf)
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)
--Federal Laws Relating to Cybersecurity: Discussion of Proposed Revisions (2012)
ACLU on privacy
Privacy Foundation
Electronic Frontier Foundation
NACDL’s Domestic Drone Information Center
Electronic Privacy Information Center
Criminal Appeal (post-conviction) (9th Cir.)
Section 1983 Blog"If it was easy, everybody would be doing it. It isn't, and they don't."
—Me“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"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: Computer and cloud searches
D.Mont.: With court ordered pinging of cell phone, govt violated no REP in following the pings
Once officers had a warrant authorizing capturing defendant’s cell phone pings back even in 2015, he had no reasonable expectation of privacy in his movements in public when they were following him based on the result of the pings. Therefore, … Continue reading
NY2: Business records search was not particular except as to time and was a general warrant
The AG’s office obtained a search warrant for defendant’s business for allegations of mortgage fraud. Several computers, hard drives, and many records were seized. After denial of suppression, defendant entered a conditional plea. The search warrant was a “general warrant” … Continue reading
CA4: Individualized suspicion is now required for border searches of electronic devices but it wasn’t in May 2015, so the GFE applies
Warrantless forensic searches of defendant’s devices in May of 2015 lacked the required nexus to the recognized historic rationales justifying the border search exception to the warrant requirement. Officers had probable cause to suspect that defendant had previously committed grave … Continue reading
PA: State’s seeking the passcode to unencrypt a computer hard drive violates the 5A
The state’s seeking the passcode to unencrypt a computer hard drive violates the Fifth Amendment. Commonwealth v. Davis, 2019 Pa. LEXIS 6463 (Nov. 20, 2019):
N.D.Okla.: Particularity in computer searches depends on how SW was executed
Particularity in a computer search has to be flexible and reasonable because of the vast amount of information that is of necessity swept up. “Instead of applying rigid rules requiring particularity when seeking a warrant, the focus should be on … Continue reading
D.Ore.: No REP in a govt computer and email where there were banner warnings at every sign in
Defendant’s government work emails were searched without a warrant, and it’s clear, based on warnings on the computer at every sign in and regular training, that he was well aware everything on the computer has no reasonable expectation of privacy. … Continue reading
WaPo: US, UK reach deal to make it easier to get electronic data
WaPo: US, UK reach deal to make it easier to get electronic data by Eric Tucker (“The United States and United Kingdom signed an agreement Thursday that officials say will speed up dozens of criminal and national security investigations and … Continue reading
Justice Department takes another run at encryption backdoors with ‘lawful access’
CSO: Justice Department takes another run at encryption backdoors with ‘lawful access’ by Cynthia Brumfield (“Law enforcement officials and experts on the distribution of child pornography gathered on Friday to make the emotional, if not technological, case that tech companies … Continue reading
CO: Authentication of SW production from Dropbox not self-authenticating as exhibit
Production of records of documents from a Dropbox account by search warrant is not the same as records from a social media account that are more likely to be self- or nearly self-authenticating. Officers can attempt to authenticate the latter, … Continue reading
CA5: USMJ didn’t need to be told in SW application that the computer was small and portable; that’s usually obvious
Six months was not too stale in a child pornography case where the court has approved much longer delays. “The magistrate judge did not need to be told that electronic devices are often small and portable or that they might … Continue reading
W.D.Mo.: SW for cell phone includes its SD card, just as a computer SW includes the hard drive
A search warrant for a cell phone includes the SD card in it, just the same as a computer search warrant authorizes the search of the hard drive: “Such reasoning is analogous to the instant matter. For one, a micro … Continue reading
Cal.6: A broad SW is permissible in a computer search because it may be difficult to locate the subject of the search
The search warrant was sufficiently particular for a computer because it is more difficult to determine what is where in a computer when searching it. It was reasonable to allow a broad search of defendant’s computer to find what was … Continue reading
