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- E.D.Va.: Must plead prejudice when delay of a cell phone SW is alleged
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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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--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)
Website design by Wally Waller, Little Rock 
Category Archives: E-mail
Fortune: The FBI’s New Clinton Email Search Is Likely Illegal Under the Fourth Amendment
Fortune: The FBI’s New Clinton Email Search Is Likely Illegal Under the Fourth Amendment: The decision by FBI Director James Comey to announce a new probe of Hillary Clinton’s emails just days before the election is under enormous political fire. … Continue reading
Lawfare: Did the Fourth Amendment Require the FBI to Selectively Seize Weiner’s Emails?
Lawfare: Did the Fourth Amendment Require the FBI to Selectively Seize Weiner’s Emails? by Michael Price: Recent news reports indicate that the FBI has obtained a warrant to search a cache of emails belonging to Hillary Clinton aide Huma Abedin. … Continue reading
WaPo: Was it legal for the FBI to expand the Weiner email search to target Hillary Clinton’s emails?
WaPo: Was it legal for the FBI to expand the Weiner email search to target Hillary Clinton’s emails? by Orin Kerr:
HuffPo: Exclusive: FBI still does not have warrant to review new Abedin emails linked to Clinton probe
HuffPo: Exclusive: FBI still does not have warrant to review new Abedin emails linked to Clinton probe by Michael Isikoff:
Independent Journal Review: DOJ Wants To Overturn Microsoft v. United States – That Would Be A Disaster For Privacy Rights
Independent Journal Review: DOJ Wants To Overturn Microsoft v. United States – That Would Be A Disaster For Privacy Rights by David Williams:
ABAJ: Oregon civil rights lawyer files First [and Fourth] Amendment suit over surveillance of his Twitter account
ABAJ: Oregon civil rights lawyer files First Amendment suit over surveillance of his Twitter account by Debra Cassens Weiss:
WaPo: The Volokh Conspiracy: The Fourth Amendment and email preservation letters
WaPo: The Volokh Conspiracy: The Fourth Amendment and email preservation letters by Orin Kerr:
Guardian: Yahoo secretly monitored emails on behalf of the US government – report
Guardian: Yahoo secretly monitored emails on behalf of the US government – report Company complied with a classified directive, scanning hundreds of millions of Yahoo Mail accounts at the behest of NSA or FBI, say former employees
D.Kan.: USMJ’s email warrant denial for lack of PC affirmed, but gov’t can reapply because it has more info
The USMJ’s decision that the email search warrant didn’t show probable cause is not reversed, but it was sufficiently particular. The government can reapply again because it says it has additional information. Courts must balance privacy and the government’s ability … Continue reading
E.D.Mich.: Def provided a cell phone to a minor he was trafficking for sex, and he had no REP in it even though he paid for it
Defendant was accused of sex trafficking a minor and provided her a cell phone. She had apparent authority to consent to search of the phone, and it was voluntarily given. United States v. Gardner, 2016 U.S. Dist. LEXIS 128480 (E.D.Mich. … Continue reading
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):
D.Mass.: PC shown for white collar email search by declaration of investigator that email is commonly used
A federal search warrant issued by a USMJ in the District if Massachusetts could be served on an email provider in Florida under § 2703(b)(1)(A). The affiant’s statement that white collar defendants frequently use email to communicate was sufficient to … Continue reading
N.D.Ga.: Motion to suppress of “any Hotmail accounts under his direction, control, use or access” doesn’t show standing
Defendant failed to show standing in his motion to suppress by merely challenging the search of “any Hotmail accounts under his direction, control, use or access” without showing his connection. United States v. Archie, 2016 U.S. Dist. LEXIS 70620 (N.D.Ga. … Continue reading
CNET: Senate bill would let FBI read your emails without a court order
CNET: Senate bill would let FBI read your emails without a court order by Shara Tibken The 2017 Intelligence Authorization Act would deal a blow to privacy by making government surveillance easier.
D.Kan.: Where USMJ lacks jurisdiction over subject of search or crime, SW void and no GFE
A Maryland USMJ could not issue a search warrant for email where there was no indication that the child pornography offense occurred in that jurisdiction. The email user was in another state as was gmail. Therefore, there was a lack … Continue reading
NACDL Press Release: House Judiciary passed out Email Privacy Act
Today the House Judiciary Committee passed out of committee the Email Privacy Act (H.R. 699) by a vote of 28-0. This bill is a long overdue update of the Electronic Communications Privacy Act (ECPA), a bill passed in 1986 that … Continue reading
D.Kan.: USMJ scholarly opinion on history of email SWs; “Needless to say, a person’s email account may reveal their ‘privacies of life.’”
The government’s email account search warrant request is overbroad as to what is being seized. The court analogizes Riley and notes that email accounts can provide a detailed picture of a person’s life the same as a cell phone search. … Continue reading
Center for Democracy and Technology: A Response to Law Enforcement Concerns with the Email Privacy Act
Center for Democracy and Technology: A Response to Law Enforcement Concerns with the Email Privacy Act by Jadzia Butler:
Reason.com: Fourth Amendment Protections for Emails Inch Forward in Congress
Reason.com: Fourth Amendment Protections for Emails Inch Forward in Congress by Scott Shackford: Legislation would require warrants for old communications. There is a big, huge gap in your Fourth Amendment protection against government searches without a warrant that goes all … Continue reading
WaPo: UC-Berkeley students sue Google, alleging their emails were illegally scanned
WaPo: UC-Berkeley students sue Google, alleging their emails were illegally scanned by Emma Brown: Four students and alumni from the University of California-Berkeley have sued Google in federal court, alleging that the company — which runs the university’s email accounts … Continue reading