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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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Section 1983 Blog -
"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
S.D.N.Y.: Emails from CIs provided PC, and the SW was limited to categories of information
A CI gave emails to government investigators about health care fraud. They and other information provided probable cause for more emails. The warrants were particularized by being limited to eight categories. United States v. Mathieu, 2018 U.S. Dist. LEXIS 192281 … Continue reading
CA3: Work email subpoena gets QI in § 1983 case; law still evolving. Kerr: Confusing?
A prosecutor and state investigator subpoenaed plaintiff’s work emails from Penn State. They get qualified immunity because there was no clearly established law that the subpoena was invalid. Plaintiff argues the evolving standards of the reasonable expectation of privacy in … Continue reading
WSJ: How to Protect Your Email Inbox From Snoopers
WSJ (sub. req.): How to Protect Your Email Inbox From Snoopers by Douglas MacMillan: An email inbox is a vault of secrets. In recent years, millions of users have been giving out the combination.
N.D.Fla.: Email SW didn’t required search protocol be stated in SW
“The officers followed a reasonable protocol in conducting the search. The protocol was not in the warrant, but this did not render the warrant defective. See United States v. Khanani, 502 F.3d 1281, 1290 (11th Cir. 2007). And in any … Continue reading
D.Ore.: SW for all emails for 6½ months was overbroad; it could be narrowed for word search
A search warrant to Google for all emails from the target’s accounts from October 1, 2016 to April 14, 2017 was overbroad. It was a sex trafficking investigation, but the request can be narrowed because Google can word search and … Continue reading
D.Minn.: Seizure of emails implicated A-C privilege and are subject to suppression
The defendant raised attorney-client privilege against the seizure of emails to lawyers and then CPAs retained by his tax lawyers. The former was determined to be waived. The latter, however, remained privileged. United States v. Adams, 2018 U.S. Dist. LEXIS … Continue reading
MD: Use of text messaging is not a waiver of REP for spousal privilege
The state obtained text messages by legal process and admitted them at trial, arguing that the Verizon service agreement was a waiver of any reasonable expectation of privacy in third party records. It is not a waiver of spousal privilege … Continue reading
SCOTUSBlog: Argument analysis: Justices divided over disclosure of overseas emails
SCOTUSBlog: Argument analysis: Justices divided over disclosure of overseas emails by Amy Howe:
WaPo: Supreme Court to hear Microsoft case: A question of law and borders
WaPo: Supreme Court to hear Microsoft case: A question of law and borders by Ellen Nakashima:
D.Mass.: Overseizure by retention of unresponsive emails seized under SW doesn’t require suppression of all
Defendant contends that the overseizure and retention of emails obtained by warrant that aren’t relevant to the crime under investigation requires suppression of even that which was validly obtained. No court has gone that far. His creative attempt to extend … Continue reading
wccftech: Sony Starts Sharing PlayStation 4 Data with the FBI – Begins with a Terror Investigation
wccftech: Sony Starts Sharing PlayStation 4 Data with the FBI – Begins with a Terror Investigation by Rafia Shaikh:
SCOTUSblog: Symposium: Whatever happens in US v. Microsoft, three themes will persist
SCOTUSblog: Symposium: Whatever happens in US v. Microsoft, three themes will persist
Cato: For the Purposes of the Fourth Amendment, Does it Matter Where Your Email Is Stored?
Cato: For the Purposes of the Fourth Amendment, Does it Matter Where Your Email Is Stored? by Ilya Shapiro, Trevor Burrus, and Reilly Stephens, re Cato’s amicus brief in United States v. Microsoft.
Once again, Trump team lawyer doesn’t understand search warrant process (Part 2) | And the President undermines U.S. criminal justice to benefit all suspects
Once again, a Trump team lawyer doesn’t understand the Fourth Amendment. Saying the Fourth Amendment was violated doesn’t make it so. I hear this everyday from my own clients who are far less sophisticated about the law than Trump’s own … Continue reading
E.D.La.: Not filing motion to suppress but joining in codef’s renewed motion to suppress was waiver
Where one defendant didn’t file a motion to suppress but joined in a renewed motion to suppress of a codefendant, the motion is treated as waived. The procedure attempted circumvents Rule 12. Moreover, he doesn’t even have standing. United States … Continue reading
Vox: The police can search your email without telling you. That’s nuts.
Vox: The police can search your email without telling you. That’s nuts. by Hannah Bloch-Wehba: So much of our lives today are conducted online that it’s essential that we know who has access to our information. And that’s especially true … Continue reading
D.Kan.: AOL’s TOS deny an objective REP in CP transmitted by email (on remand from CA10)
In the district court’s original opinion, reversed for reconsideration in United States v. Ackerman, 831 F.3d 1292 (10th Cir. 2016), the district court assumed defendant had a reasonable expectation of privacy in his emails. On remand, the court determines that … Continue reading
CA6: Facebook messenger SW was not overbroad because limited in time
Defendant’s guilty plea waived any suppression motion because there was no ruling to appeal. On the merits, the search warrant here was not overbroad. The Facebook search warrant sought only five months of information related to sex with minors. It … Continue reading
NYLJ: Battle Over Emails Stored Overseas Reaches Supreme Court
NYLJ: Battle Over Emails Stored Overseas Reaches Supreme Court by Philip C. Patterson & Vera M. Kachnowski: In their International Criminal Law and Enforcement column, Philip C. Patterson and Vera M. Kachnowski discuss a case which highlights a recurring tension … Continue reading
D.Mass.: Email warrant for all material so it can be electronically and specifically searched was reasonable
The email search warrant produced 430,081 items, and the database provided then had to be searched. That complied with the terms of the search warrant and the Fourth Amendment because it still provided particularity. United States v. Aboshady, 2017 U.S. … Continue reading