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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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F.R.Crim.P. 41
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Federal Law Enforcement Training Center Resources
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--Electronic Communications Privacy Act (2012)
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"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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Category Archives: F.R.Crim.P. 41
D.Minn.: Violation of state law in issuing a cell phone search warrant not ground to suppress in federal court
A cell phone search warrant issued in violation of Georgia law would not be suppressed in federal court. Also, Rule 41 and the Fourth Amendment are not coextensive, so the alleged violation of Rule 41 is not necessarily a violation … Continue reading
LA rule permitting electronic warrant applications and issuance doesn’t violate 4A or Rule 41
The police got a search warrant from a Louisiana state judge by electronic means, but the case ended up in federal court. Louisiana’s criminal rule permitting electronic warrant applications does not violate the “oath or affirmation” requirement of the Fourth … Continue reading
D.V.I.: Telephonic warrant requirements were complied with and GFE didn’t apply
The telephonic search warrant here failed the requirements of Rule 41, including the verbatim reading of the warrant to the issuing judge, and didn’t mention that they also wanted to search a car that was omitted from the warrant. The … Continue reading
big think: Edward Snowden: The Rule 41 Amendment Returns Us to the 1760s
big think: Edward Snowden: The Rule 41 Amendment Returns Us to the 1760s by Natalie Showmaker:
Rule 41 change effective: NPR: Judges Have More Power In Granting Warrants To Hack Digital Devices / Some questions for Jeff Sessions
NPR: Judges Have More Power In Granting Warrants To Hack Digital Devices by David Welna Under new rules, the Justice Department can ask a federal court for permission to search mobile devices outside the court’s district. Congress had a full … Continue reading
IP Watchdog: Review the Rule Act would delay SCOTUS proposed changes to Rule 41 on warrants for electronic searches [except it goes into effect at midnight]
IP Watchdog: Review the Rule Act would delay SCOTUS proposed changes to Rule 41 on warrants for electronic searches by Steve Brachmann Query: Can Congress block a rule after sitting on their hands from SCOTUS notice to them in April … Continue reading
Naked Security: Campaigners bid to delay Rule 41 ‘legal hacking’ bill
Naked Security: Campaigners bid to delay Rule 41 ‘legal hacking’ bill by Lisa Vaas:
EFF: Why the Warrant to Hack in the Playpen Case Was an Unconstitutional General Warrant
EFF: Why the Warrant to Hack in the Playpen Case Was an Unconstitutional General Warrant by Andrew Crocker: Should the government be able to get a warrant to search a potentially unlimited number of computers belonging to unknown people located … Continue reading
S.D.N.Y.: PC was shown, partly based on LEO’s expert opinion
There was probable cause for the search warrant in this case, partly based on a law enforcement officer’s expert opinion about drug trafficking. United States v. Lights, 2016 U.S. Dist. LEXIS 130915 (S.D.N.Y. Sept. 23, 2016). Another two Playpen cases; … Continue reading
S.D.Iowa finds Playpen NIT warrant violation of Rule 41 and Fourth Amendment
S.D.Iowa joins minority and finds Playpen NIT warrant violation of Rule 41 also a Fourth Amendment violation. United States v. Croghan, 2016 U.S. Dist. LEXIS 127479 (S.D.Iowa Sept. 19, 2016):
Alt-Right blames Obama for SCOTUS amendment to Rule 41
I never bother to read World Net Daily because it is essentially wrong on everything. Last night’s emails includes this headline: WND: DEC. 1: WHEN 4TH AMENDMENT WILL BE DESTROYED by Craige McMillan Exclusive: Craige McMillan warns of reg that’ll … Continue reading
W.D.Tex.: In a Playpen case, planting software on a computer to cause it to transmit its address is “unquestionably a search”
There is no reasonable expectation of privacy in IP addresses, but planting software on a computer to cause it to transmit its address is “unquestionably a search.” Recognizing the split of authority, Rule 41 was violated, but the court declines … Continue reading
E.D.Mich.: Rule 41(b)(4) tracking order can’t be issued by state judge
A Rule 41(b)(4) tracking order was issued by a state court judge when a USMJ was unavailable. The court finds state judges can issue search warrant but not tracking orders, and the Advisory Committee notes made that clear. United States … Continue reading
PA: SW affidavits not yet revealed to def; investigation could be compromised
Reviewing the affidavits for the three search warrants, the court is convinced that there is still a risk of compromising the investigation, so the search warrants will remain under seal as to the potential defendant. The court recognizes the right … Continue reading
D.Neb., M.D.Fla., C.D.Cal. also sustain an NIT search warrant for IP addresses
Another NIT warrant upheld in a child pornography case. United States v. Laurita, 2016 U.S. Dist. LEXIS 103405 (D.Neb. Aug. 5, 2016)* (collecting cases):
E.D.Wis.: Rule 41 violation isn’t necessarily a 4A violation
A violation of Rule 41 simply is not a Fourth Amendment violation. The case defendant cites isn’t on point. “[T]he defendant ignores the fact that, thirteen years after [that] decision, and almost thirty years before the search that resulted in … Continue reading
E.D.Va.: Another NIT Playpen case before same judge; suppression not a proper remedy
“The exact issues raised by the instant motions to suppress were also raised by the defendant in United States v. Gerald Andrew Darby, 2:16cr36. another case pending before the undersigned. The Court denied both Motions to Suppress in Darby and … Continue reading
D.Ore.: No territorial limitation for SW to Facebook under § 2703
“The territorial limitation in Rule 41 … does not limit warrants issued pursuant to [18 U.S.C.] § 2703.” A search warrant for Facebook in another jurisdiction was valid. United States v. Bundy, 2016 U.S. Dist. LEXIS 94476 (D.Ore. July 20, … Continue reading
N.D.Ga.: SCA warrant can cross jurisdictional lines
“The Court agrees with the Magistrate Judge’s determination that the SCA provided authority for the search authorized by Magistrate Judge Smith. See United States v. Berkos, 543 F.3d 392, 398 (7th Cir. 2008) (geographic limitation of Rule 41(b) does not … Continue reading