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- LA4: Merely having a concealed firearm isn’t RS for a frisk
- OR: Merely driving off the road wasn’t RS, but adding the driver’s demeanor at the time was
- OH6: Trial court’s failure to explain RS under Rodriguez required remand
- CA6: Asking def before a patdown during arrest what he had on him wasn’t barred by Miranda
- NY Queens: PC shown for SW blood drawn at hospital after car wreck
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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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--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: E-mail
D.Idaho: Broad email warrants are not per se unreasonable
Broad email search warrants were not unreasonable just because they were broad. The breadth of the financial crime under investigation justifies it. In addition, the good faith exception applies and it’s too early to tell if any has to be … Continue reading
D.Ariz.: Overseizure of emails by SW didn’t require suppression of all; GFE also applies
This search warrant was issued in a SSA fraud case alleging a decade of false claims. The search warrant was sufficiently particular and not overbroad. The fact the period of the alleged offense was through January 2014 did not prohibit … Continue reading
E.D.Wash.: Seizure of e-mails between def and lawyer prior to adversary proceedings didn’t violate 6A
The seizure of defendant’s emails between him and his lawyer didn’t violate the Sixth Amendment when adversary proceedings had not yet begun – defendant wasn’t indicted for more than a year later. United States v. Smith, 2020 U.S. Dist. LEXIS … Continue reading
S.D.N.Y.: Govt satisfied § 2705(b) nondisclosure requirements; NDO didn’t violate 1A
The government showed a justifiable basis for a nondisclosure order (NDO) under 18 U.S.C. § 2705(b) of the order directed to Google for six email accounts. Assuming strict scrutiny applied, the government showed it because nondisclosure could prevent compromising an … Continue reading
CA1: Alleged overseizure of email under SW would only require partial suppression; def doesn’t identify that which was overseized
Defendant’s motion to suppress electronic data acquired by a Rule 41(e)(2)(B) search warrant on his email account was properly denied. Based on the absence of a time limit in the warrant, it was not unreasonable to interpret the warrant to … Continue reading
E.D.Mich.: No ex ante opportunity for email account holder to challenge SW
Targets of an email search warrant lack standing to challenge the search warrant ex ante, before execution. They must do so after. In the Matter of the Search of Records, Information, and Data Associated with 14 Email Addresses Controlled by … Continue reading
Law360: Lawmakers Push To Extend Atty-Client Shield To Prison Emails
Law360: Lawmakers Push To Extend Atty-Client Shield To Prison Emails by RJ Vogt:
Law360: Lawmakers Push To Extend Atty-Client Shield To Prison Emails
Law360: Lawmakers Push To Extend Atty-Client Shield To Prison Emails by RJ Vogt:
S.D.N.Y.: Typo in SW for emails could be overlooked in “common sense,” nontechnical reading
There was a typo in the affidavit for search warrant for emails, and the government procured another. The typo wasn’t even material because a “common sense” reading of the whole affidavit shows it was typographical error that could be overcome. … Continue reading
The Federalist: The Feds Don’t Need To Tell You Or Get A Warrant To Collect Your Emails And Phone Records
The Federalist: The Feds Don’t Need To Tell You Or Get A Warrant To Collect Your Emails And Phone Records by Leslie McAdoo Gordon.
E.D.N.Y.: Email SWs are treated the same as hard drive warrants: The entirety may be seized so it can be searched by keyword
Email search warrants are treated the same as hard drive warrants: The entirety may be seized so it can be searched by keyword to find relevant material. Moreover, the good faith exception applies. United States v. Chalavoutis, 2019 U.S. Dist. … 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
D.Idaho: Failure to tell USMJ that a trash pull came up empty wasn’t material when there was more that did show PC; wouldn’t have changed outcome
Omission to tell the USMJ that a trash search of defendant’s house came up empty didn’t undermine the other probable cause, wouldn’t have changed the outcome, and wasn’t a Franks issue. The same here about defendant’s alleged travels: Omissions don’t … Continue reading
D.Nev.: Email SW limited to a date range and containing keywords was particular
Email search warrant limited to a date range and containing keywords was particular. United States v. Cariani, 2019 U.S. Dist. LEXIS 177059 (D. Nev. Oct. 10, 2019):
WaPo: DEA, IRS reviewed cache of emails amid ongoing criminal probe into Baltimore lawyers
WaPo: DEA, IRS reviewed cache of emails amid ongoing criminal probe into Baltimore lawyers by Tim Prudente:
N.D.Cal.: Yahoo!’s TOS results in no REP in CP transmitted through it
The Terms of Service of Yahoo! email provide defendant no reasonable expectation of privacy in child pornography that was transmitted by its service. In addition, Yahoo!’s search was a private search. United States v. Wolfenbarger, 2019 U.S. Dist. LEXIS 148822 … Continue reading
EFF: Faulty Court Ruling That Threatens to Gut Groundbreaking Privacy Statute CalECPA Must Be Reversed
EFF: Faulty Court Ruling That Threatens to Gut Groundbreaking Privacy Statute CalECPA Must Be Reversed by Karen Gullo: EFF and the ACLU of Northern California urged a California appeals court last week to reverse a judge’s wrongheaded and dangerous ruling … Continue reading
Reason: Volokh Conspiracy: Fourth Circuit Deepens the Split on Accessing Opened E-Mails
Reason: Volokh Conspiracy: Fourth Circuit Deepens the Split on Accessing Opened E-Mails by Orin Kerr Courts have been struggling with this issue for years, and now the law is even more divided than before.
ACLU blog: The Government Cannot Force E-mail Companies to Copy and Save Your Account ‘Just in Case’
ACLU blog: The Government Cannot Force E-mail Companies to Copy and Save Your Account ‘Just in Case’ by Melodi Dincer & Kristin M. Mulvey:
S.D.N.Y.: No standing in an email account def didn’t open and disavows
Defendant has no standing in an email account that was opened by somebody else that he disavows is even connected to him. United States v. Lewis, 2018 U.S. Dist. LEXIS 202501 (S.D. N.Y. Nov. 29, 2018). Reconsideration of prior denial … Continue reading