- N.D.Ga.: Failure to specify how the R&R was deficient on PC finding was waiver
- Ga.Bar J.: Who Should Guard the Attorney-Client Privilege When Documents are Seized by Law Enforcement,
- OR: For particularity in electronic devices, specify what will be found
- W.D.N.C.: Traffic stop for expired tags went right to criminal history and was overlong
- ID rejects “reasonable mistake of law” and Heien under state constitution; state’s exclusionary rule is broader
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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
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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: Digital privacy
Motherboard: This Is the Data Facebook Gave Police to Prosecute a Teenager for Abortion
Motherboard: This Is the Data Facebook Gave Police to Prosecute a Teenager for Abortion by Jason Koebler and Anna Merlan (“Motherboard has obtained court documents that show Facebook gave police a teenager’s private chats about her abortion. Cops then used … Continue reading
Bloomberg: ACLU Blasts Homeland Security Agency for Use of Location Data
Bloomberg: ACLU Blasts Homeland Security Agency for Use of Location Data by Ellen M. Gilmer (“Civil liberties advocates are accusing the Department of Homeland Security of skirting the Fourth Amendment by buying access to people’s cellphone location data.”)
Politico: Amazon gave Ring videos to police without owners’ permission
Politico: Amazon gave Ring videos to police without owners’ permission by Alfred Ng (“The revelation highlights the many ways that police can get footage from Ring doorbells, and how often it happens without consent.”)
N.D.Cal.: Another round in the Google sale of consumer information case
In the ongoing Google privacy case involving its selling of personal information, another motion to dismiss is granted in part and denied in part. In re Google RTB Consumer Priv. Litig., 2022 U.S. Dist. LEXIS 115023 (N.D. Cal. June 13, … Continue reading
WaPo: Okay, Google: To protect women, collect less data about everyone
WaPo: Okay, Google: To protect women, collect less data about everyone by Geoffrey A. Fowler (“In post-Roe America, Google searches and location records can be evidence of a crime. Here are four ways Google should protect civil rights in its … Continue reading
Forbes: Warrants Can Force Google To Look Through Your Search History–A Tragic Arson Case May Decide If That’s Constitutional
Forbes: Warrants Can Force Google To Look Through Your Search History–A Tragic Arson Case May Decide If That’s Constitutional by Thomas Brewster (“This week, Mike Price, counsel for Seymour and Fourth Amendment Center litigation director at the National Association of … Continue reading
NBC News: Police sweep Google searches to find suspects. The tactic is facing its first legal challenge
NBC News: Police sweep Google searches to find suspects. The tactic is facing its first legal challenge by Jon Schuppe (“Privacy advocates are watching the case closely, concerned that police could use reverse keyword searches to investigate people who seek … Continue reading
The Intercept: Cryptocurrency Titan Coinbase Providing “Geo Tracking Data” to ICE
The Intercept: Cryptocurrency Titan Coinbase Providing “Geo Tracking Data” to ICE by Sam Biddle (“ICE is now able to track transactions made through nearly a dozen different digital currencies, including Bitcoin, Ether, and Tether.”)
The Hill: Period tracking apps are trying to protect users’ privacy now that Roe is overturned
The Hill: Period tracking apps are trying to protect users’ privacy now that Roe is overturned by Shirin Ali (“Flo, a period tracker app that’s used by 200 million users worldwide, announced it was developing an anonymous mode which will … Continue reading
MSNBC: In post-Roe America, your cell phone is now a reproductive privacy risk
MSNBC: In post-Roe America, your cell phone is now a reproductive privacy risk by Tiffany C. Li (“Now that Roe v. Wade has fallen, states that choose to criminalize abortion can start buying and subpoenaing consumer data.”) WaPo: With Roe … Continue reading
EFF: How the Federal Government Buys Our Cell Phone Location Data
EFF: How the Federal Government Buys Our Cell Phone Location Data by Bennett Cyphers:
USA Today: Online data, medical records could be used to put women in jail under new abortion laws
USA Today: Online data, medical records could be used to put women in jail under new abortion laws by Tami Abdollah (“Period tracking apps, tele-health appointments, mail-in pharmacy requests and other data could be used as evidence in criminal cases … Continue reading
Law & Crime: Federal Judge Won’t Let Prosecutors Use Digital Cameras Seized from Accused U.S. Capitol Rioter Seen Boasting About ‘Fighting Cops’
Law & Crime: Federal Judge Won’t Let Prosecutors Use Digital Cameras Seized from Accused U.S. Capitol Rioter Seen Boasting About ‘Fighting Cops’ by Adam Klasfeld:
But this: GoPro camera evidence admitted
NBC News: Jan. 6 rioter sentenced after his GoPro showed him on front line rushing police by Ryan J. Reilly (via AOL). Our electronics rat us out.
Scientific American: Yes, Phones Can Reveal if Someone Gets an Abortion
Scientific American: Yes, Phones Can Reveal if Someone Gets an Abortion by Sophie Bushwick (“To protect personal information from companies that sell data, some individuals are relying on privacy guides instead of government regulation or industry transparency.”)
Crime Report: Installing a Security Camera? In Chicago That Will Earn $$$
Crime Report: Installing a Security Camera? In Chicago That Will Earn $$$ by TCR staff (“Chicago authorities have announced a new program that reimburses residents and businesses for installing security cameras. There’s one caveat: the cameras must be registered with … Continue reading
Buying Data and the Fourth Amendment by Orin S. Kerr
Orin S. Kerr, Buying Data and the Fourth Amendment, Hoover Institution, Aegis Series Paper No. 2109 (Nov. 17, 2021):
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
Engadget: The Treasury Department is buying sensitive app data for investigations
Engadget: The Treasury Department is buying sensitive app data for investigations by Jon Fingas (“There are concerns investigators are bypassing due process” and the Fourth Amendment. This isn’t new information.)
NYT: Facebook, Citing Societal Concerns, Plans to Shut Down Facial Recognition System
NYT: Facebook, Citing Societal Concerns, Plans to Shut Down Facial Recognition System (“Saying it wants ‘to find the right balance’ with the technology, the social network will delete the face scan data of more than one billion users.”)