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Recent Posts
- AR: RS def rented a hotel room was sufficient for search waiver; PC not required
- LA5: No standing to challenge search of shooting victim’s cell phone in def’s possession
- N.D.Okla.: Cell phones possessed by tribal police not subject to return under Rule 41(g)
- E.D.Ark.: Landlord and tenant refused rental property inspection and SW was validly issued and protected privacy interests
- D.D.C.: Judge shopping after denial of SW inappropriate; could have appealed to DJ
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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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Congressional Research Service:
--Electronic Communications Privacy Act (2012)
--Overview of the Electronic Communications Privacy Act (2012)
--Outline of Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012)
--Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012)
--Federal Laws Relating to Cybersecurity: Discussion of Proposed Revisions (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
M.D.Fla.: Email SWs are almost never stale; the email is always there
Staleness as to an email search warrant is hard to prove. It’s always going to be on the email provider’s server. United States v. Khateeb, 2015 U.S. Dist. LEXIS 143007 (M.D.Fla. Aug. 4, 2015). Defense counsel was not ineffective for … Continue reading
D.Neb.: Google did not become a state actor by scanning email for child pornography and then reporting it to NCMEC
Google did not become a state actor by scanning email for child pornography and then reporting it to NCMEC. The IP address provided led to a search warrant. There was no Franks violation in not providing mobile IP addresses, too, … Continue reading
Wired: California Now Has the Nation’s Best Digital Privacy Law
Wired: California Now Has the Nation’s Best Digital Privacy Law by Kim Zetter CALIFORNIA CONTINUED ITS long-standing tradition for forward-thinking privacy laws today when Governor Jerry Brown signed a sweeping law protecting digital privacy rights. The landmark Electronic Communications Privacy … Continue reading
The Hill: Google: Government creating ‘distractions’ in email privacy debate
The Hill: Google: Government creating ‘distractions’ in email privacy debate by Mario Trujillo: Google and other tech advocates accused federal agencies Wednesday of creating “distractions” during the years-long debate on updating an email privacy law from the 1980s. “We certainly … Continue reading
Slate: Our Inboxes, Ourselves | ECPA in Congress, finally?
Slate: Our Inboxes, Ourselves by Mike Godwin An ancient email privacy law might finally be updated. Congress needs to get it right.
The Hill: Bill to limit reach of US warrants faces uphill battle in Congress
The Hill: Bill to limit reach of US warrants faces uphill battle in Congress by Mario Trujillo: Congress faces a tough slog to update the email privacy law at the center of Microsoft’s fight against a U.S. warrant mandating that … Continue reading
The Hill: The quiet battle for privacy in the cloud
The Hill: The quiet battle for privacy in the cloud by Dan Horowitz: Why is the Second Circuit being forced to defend our electronic privacy and preserve an international agreement from the Obama administration? Recently, a Federal Judge in New … Continue reading
N.D.Ga.: Govt’s email search protocol satisfied particularity despite large initial seizure
The government’s protocol for searching defendant’s emails satisfied the particularity requirement. All the emails were produced, but the government searched within them only for emails relating to copyright infringement, the crime under investigation. Other cases are in accord. United States … Continue reading
The Hill: The SEC’s curious view of the Constitution and privacy rights
The Hill: The SEC’s curious view of the Constitution and privacy rights by Lou Mejia:
E.D.N.Y.: Overseizure of emails did not void the search warrant; some overseizure necessary for a proper investigation
A judge in the E.D.N.Y. may issue a search warrant for emails on Yahoo!’s email server in California under Rule 41 and the Stored Communications Act. The warrant was broad in its particularity, but still constitutional. The warrant lawfully included … Continue reading
S.D.N.Y.: Email warrant need only show “fair probability” evidence would be found in it; all emails for three years not overbroad in conspiracy case
Defendant’s email account, shown on a website as a “contact” email address, was accessed by a search warrant for evidence of her being involved in a fraud against the government. Direct evidence that an email account actually contains evidence is … Continue reading
Daily Caller: Government ‘Rewrites’ Law To Access Microsoft Emails Stored Overseas
Daily Caller: Government ‘Rewrites’ Law To Access Microsoft Emails Stored Overseas by Giuseppe Macri: In a brief filed late Wednesday, Microsoft said the federal government’s legal argument for seizing user emails stored overseas “rewrites” an almost 30-year-old law to “reinterpret” … Continue reading
D.Alaska: Second SW for everything in six email accounts is overbroad; prior SW was limited and motion to compel should be filed
Google declined to respond to a search warrant for content of six email accounts for a six month range because of overbreadth. There was probable cause. Instead of seeking to enforce the search warrant against Google, the government issues a … Continue reading
NLJ: Reflections On Law and Technology | Q&A with John Facciola, retired magistrate judge
NLJ: Reflections On Law and Technology | Q&A with John Facciola, retired magistrate judge by Zoe Tillman: Judges aren’t generally known for their tech savvy. John Facciola was one of the exceptions. Facciola, 69, retired earlier this year as a … Continue reading
N.D.Cal.: The government’s typical seize first, search second normal search protocol doesn’t work with email
The government’s typical seize first, search second normal search protocol doesn’t work with email. This search warrant for a Gmail account is denied. Try again. In re [Redacted]@gmail, 2014 U.S. Dist. LEXIS 181984 (N.D.Cal. May 8, 2014) (apparently under seal … Continue reading
The Hill: Republican senator pushes bill to require warrants for emails
The Hill: Republican senator pushes bill to require warrants for emails by Mario Trujillo: The senator’s bill limits access to data stored in clouds and overseas.
Ripon Advance: Electronic Communications Privacy bill gains new ally
Ripon Advance: Electronic Communications Privacy bill gains new ally: U.S. Rep. Reid Ribble (R-WI) said on Monday that he has joined the effort to pass House Bill 699, also known as the Electronic Communications Privacy Amendments Act, which aims to … Continue reading
The Hill: Senators resurrect bill to require a warrant for email searches
The Hill: Senators resurrect bill to require a warrant for email searches by Mario Trujillo Sens. Patrick Leahy and Mike Lee plan to re-introduce legislation in the “coming weeks.”
Center for Democracy and Technology: Data Privacy Day: A Reminder of the Need to Update ECPA
Center for Democracy and Technology: Data Privacy Day: A Reminder of the Need to Update ECPA by Chris Calabrese: For years CDT has been leading the charge to update the Electronic Communications Privacy Act (ECPA), the law that governs how … Continue reading