Category Archives: F.R.Crim.P. 41

CA2: Court order under SCA can’t require production of emails stored off-shore

In the Matter of a Warrant to Search a Certain E Mail Account Controlled and Maintained by Microsoft Corporation, Microsoft Corporation v. United States, 2016 U.S. App. LEXIS 12926 (2d Cir. July 14, 2016):

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The Hill: Congress Blog: Congress should stop government hacking and protect the Fourth Amendment

The Hill: Congress Blog: Congress should stop government hacking and protect the Fourth Amendment by Peter Goldberger: While it is surely possible to craft a constitutional procedure for digital searches, the rulemaking process is not adequate for addressing such sensitive … Continue reading

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Just Security: With Remote Hacking, the Government’s Particularity Problem Isn’t Going Away

Just Security: With Remote Hacking, the Government’s Particularity Problem Isn’t Going Away by Andrew Crocker:

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DC: A SW doesn’t have to be just for evidence of a crime—it can be for “evidence that might lead to other evidence”

A search warrant doesn’t have to be just for evidence of a crime—it can be for “evidence that might lead to other evidence.” In re Grand Jury Witness G.B., 2016 D.C. App. LEXIS 170 (May 26, 2016):

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ars technica: Senators put forward new bill to halt expansion of gov’t hacking powers

ars technica: Senators put forward new bill to halt expansion of gov’t hacking powers by Cyrus Farivar: Rule 41 change will let feds search “millions of computers” from just one warrant.

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The Hill: Dem introduces bill to block new government hacking powers

The Hill: Dem introduces bill to block new government hacking powers by Katie Bo Williams:

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The Hill: Search warrant change sparks backlash

The Hill: Search warrant change sparks backlash by Katie Bo Williams: A battle is brewing on Capitol Hill over a seemingly small change to federal hacking powers that critics say will authorize sweeping government surveillance. Unless Congress moves by December … Continue reading

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Center for Democracy and Technology: Issue Brief: Proposed Changes to Rule 41

Center for Democracy and Technology: Issue Brief: Proposed Changes to Rule 41: The Rule Change: Under the old Rule 41 of the Federal Rules of Criminal Procedure, magistrates with authority in a district may only issue warrants for search and … Continue reading

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SCOTUS approves Rule 41 change permitting SW for remote access of electronic stored data, including “the Cloud”

On April 28th, SCOTUS notified Congress of amendments to F.R.Crim. 41 (also Rules 4 & 45)) to permit searches of remotely stored electronic data–essentially search warrants for the Cloud. The Rule change is effective December 1, 2016. The ACLU’s insightful … Continue reading

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W.D.Wash.: The govt didn’t violate the 4A by hacking into a child porn server and running it for two weeks, forwarding all user info to another govt computer

The government took over a child pornography website in Washington state and ran it for two weeks via a Title III warrant from a USMJ in the Eastern District of Virginia. They sent all information of visitors to that website … Continue reading

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CA8: Exceeding the 30 day notice requirement for delayed notice under 18 U.S.C. § 3103a(b) not a Fourth Amendment violation

The government identified a child pornography server in Nebraska named Pedobook with sophisticated software designed to obscure the identity of all visiters. Rather than shut it down, they got a warrant to install tracking software on the computer and had … Continue reading

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CA4: USMJ had correct attachment emailed but wrong one was presented and signed; technical violation, not a constitutional one; no suppression

The government emailed the issuing magistrate the correct attachments, but brought the wrong attachments to the court for signature. The magistrate had the correct ones on her desk, but signed the wrong one when it was handed to her. This … Continue reading

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CA10: Violation of territorial limitation of Rule 41 was shown to be prejudicial, and suppression affirmed

The government conceded that the search warrant executed violated Rule 41(b)(1)’s within-district limitation on federal magistrate judges’ warrant-issuing authority. Because the government offered no other basis for reversal, and because the court concluded that defendant established prejudice as a result … Continue reading

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D.P.R.: Rule 41 provides authority on PC for cell provider to assist in recording calls phone owner has already consented to

The government had permission from a cell phone user to record conversations but needed assistance from the cell phone provider which declined to do it without a court order. First, Title III doesn’t apply because the user’s consent removes the … Continue reading

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S.D.Ga.: Computer generated signature on a search warrant not Fourth Amendment violation

Defendant is charged with arranging the murder of her soldier husband on a military base, and a military judge issued a search warrant. The fact the warrant had a computer generated signature is not a constitutional error. There is no … Continue reading

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CA9: Once criminal proceedings are over, the original search isn’t an issue in Rule 41(g) proceedings for return of property

Defendant’s Rule 41(g) motion was granted in part and denied in part. The district court did not err in refusing to reconsider the original search question. “[I]n the context of Rule 41, that after criminal proceedings are completed, ‘the legality … Continue reading

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D.Minn.: Emergency lights alone doesn’t prove a “stop”; defendant was already parked

Defendant was already parked, so he wasn’t stopped, and the officer’s use of the emergency lights on his police car are not determinative of whether there was a “stop.” There was no display of weapons, touching of defendant, no coercive … Continue reading

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D.N.D.: Failure to record conversation with USMJ that address needed correction not ground to suppress

Officers discovered that the address in the search warrant was incorrect before the warrant issued, and the USMJ corrected it on the warrant. The failure to record that conversation while a Rule 41 violation and not a Fourth Amendment violation … Continue reading

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D.Nev.: Def doesn’t show factual basis for any exclusion for Rule 41 violation

Defendant’s motion to suppress for a Rule 41 violation is denied as untimely. Even on the merits, it shows no factual basis for exclusion. United States v. Williams, 2014 U.S. Dist. LEXIS 75567 (D. Nev. February 14, 2014): Williams’ motion … Continue reading

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E.D.Mo.: Rule 41(g) on return of property doesn’t provide for suppression of evidence

Rule 41(g) on return of property doesn’t provide for suppression of evidence. The evidence seized is presumptively validly retained, and the burden is on the search target to show why it should be returned. Here, they didn’t meet that burden. … Continue reading

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