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ABA Journal Web 100, Best Law Blogs (2017); ABA Journal Blawg 100 (2015-16) (discontinued 2018)
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© 2003-22,
online since Feb. 24, 2003 Approx. 350,000 visits (non-robot) since 2012 Approx. 40,000 posts since 2003~~~~~~~~~~~~~~~~~~~~~~~~~~
Fourth Amendment cases,
citations, and linksLatest Slip Opinions:
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To search Search and Seizure on Lexis.com $Research Links:
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Federal Law Enforcement Training Center Resources
FBI Domestic Investigations and Operations Guide (2008) (pdf)
DEA Agents Manual (2002) (download)
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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
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NACDL’s Domestic Drone Information Center
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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"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: Computer and cloud searches
S.D.N.Y.: Two years to search a password protected computer, and more after mistrial, was not unreasonable
The government got a search warrant for defendant’s computer in days, but it took two years to complete the forensic review because of password protection. The two-year delay was thus not unreasonable. After a mistrial, the government kept searching, and … Continue reading
techdirt: Device Searches Have Created A Massive Database Of American Phone Data CBP Agents Can Search At Will
techdirt: Device Searches Have Created A Massive Database Of American Phone Data CBP Agents Can Search At Will by Tim Cushing:
CA8: Independent source justified search despite illegal protective sweep
“Herbert Green previously appealed the denial of his motion to suppress drugs and firearms discovered in his apartment during a law enforcement search outside the scope of the police’s warrant. See United States v. Green, 9 F.4th 682, 691-93 (8th … Continue reading
CA9: Private searcher mimicking her computer search for police was reasonable
Defendant’s former girlfriend found child pornography on his computer. She took the computer to the Reno sheriff’s office, and the police there had her show them what she did and go no farther. This was admitted by the government to … Continue reading
CA7: RS present for border search of thumb drives of convicted sex offender
Defendant had a prior sex offense with a minor from 1997. HSI started investigating him in 2015 for his travels to Ukraine. “Skaggs frequently traveled overseas; Skaggs was the director of the Ukrainian Angels Resource Network, according to his LinkedIn … Continue reading
CA3: PC for fraud by computer permits search of def’s house for computers
Defendant was suspected of committing fraud with his computer, and that was probable cause for searching for and seizing the computer in his home. United States v. Nyamekye, 2022 U.S. App. LEXIS 2966 (3d Cir. Feb. 2, 2022). Assuming reasonable … Continue reading
MO: Prosecutor can’t be sued for making a file decision based on the search of ptf’s computer
Plaintiff sued a prosecutor for various things including the “privacy tort ‘of unreasonable intrusion into private facts.’” His computer was searched under a warrant and potential privileged material was obtained. Plaintiff’s own complaint says the prosecutor was given the information … Continue reading
OH10: No REP in possession of a stolen laptop that sent its location information
Appellant’s motion to reopen his appeal to reargue his Fourth Amendment claims is denied. Not one thing he proffers can change the outcome of the appeal. There was a basis for a GPS warrant on his vehicle, and there was … 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
C.D.Cal.: Admin SDT is not a 4A seizure
The Secretary of Labor’s administrative subpoena duces tecum here did not violate the Fourth Amendment. “A warrant is required only when government officials enter onto a private party’s premises without consent and forcibly take possession of documents.” Walsh v. Int’l … Continue reading
E.D.Va.: Delay in searching electronics not unreasonable on balance
A state search warrant was issued for defendant’s electronics. They went to the State Police computer lab to analyze, but they were in a long queue. A few months into the delay, the federal government sought its own search warrant. … Continue reading
CA2: SW said “electronics” and “passwords” to access them, but it did not say “computers”; those words mean computers
The search warrant used the word “electronics” and “passwords” to access them, but it did not say “computers.” “Because the warrant specifically permitted seizure of “electronics,” a category into which computers and tablets would fall under the plain text, not … Continue reading
CA11: Ptf had no REP in workplace computer, even with personal iPhone backed up on it
Plaintiff had no reasonable expectation of privacy in her workplace computer from a search by the employer during an audit of her time off related to a second job instigated after a discrimination complaint. The fact she backed her iPhone … Continue reading
MO: Even if 4A IAC, no prejudice
Even if defense counsel was ineffective for not moving to suppress files found on his computer that corroborated his child rape victim, he can’t show prejudice because of other exhibits in evidence which were incontestable. The post-conviction court erred in … Continue reading
CA8: Child porn knock-and-talk leads to valid exigency-based warrantless entry
This case started with a knock-and-talk about defendant visiting websites involving commercial sex acts with children. “While talking with William Meyer outside his home, federal agents grew worried that, if he went back inside, he would destroy evidence. Rather than … Continue reading
PA: No REP in data moving back and forth over a (nearly) public wifi connection where user agreement told users that
Defendant connected to the wifi at his college, and he was aware of the computing access policy that said that he had no Fourth Amendment reasonable expectation of privacy in the information that moved back and forth over his connection. … Continue reading
Reason: “The Fourth Amendment Limits of Internet Content Preservation”
Reason: “The Fourth Amendment Limits of Internet Content Preservation” by Orin S. Kerr (“A strong Fourth Amendment claim that criminal defense lawyers should be making.”):
W.D.N.Y.: Failure to preserve a recording of issuance of a SW required by NY law is not a 4A issue
Failure to preserve a recording of issuance of a search warrant as required by New York law is not a Fourth Amendment issue. United States v. Bailey, 2021 U.S. Dist. LEXIS 212869 (W.D.N.Y. Nov. 3, 2021). “Recognizing that this case … Continue reading
