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- CA5: Even if parole search was to aid criminal investigation, it was still reasonable
- IN: Cell phone linked to murder by TM sent before; PC for search
- C.D.Cal.: Inquiry into actions of others besides the officers involved in search is a new Bivens claim and barred
- D.Minn.: Regular CI had “extensive knowledge of street gangs, firearms, and narcotics distribution”; there was PC
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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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"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: Cell phones
IN: Cell phone linked to murder by TM sent before; PC for search
Defendant’s cell phone was linked to the murder by a witness saying that the meet was set up by text messages and more. Banks v. State, 2024 Ind. App. LEXIS 66 (Mar. 15, 2024):
GA: SW for marijuana supported plain view seizure of firearms, ammunition, and body armor
Police had a search warrant for marijuana. “[E]ven if the seizure of the firearms, ammunition, and body armor is not within the scope of the warrant, we agree with the State that law enforcement was authorized to seize these items … Continue reading
E.D.Pa.: In a cell phone search, cached data was within the “electronic data or memory features” of the phone as provided by the SW
Cached data on defendant’s cell phone is included in “[a]ll documents, including in electronic form, and stored communications including … photographs, videos, and any other electronic data or other memory features contained in the devices and SIM cards[.]” The search … Continue reading
D.Minn.: Cell phone that govt can’t open not in its possession for discovery purposes
Defendant’s cell phone is in the possession of the government but it can’t search it because they don’t have the pass code. Defendant’s request for discovery of the phone under Rule 16 is denied because the contents of the phone … Continue reading
D.Idaho: Cellphone warrant was not sufficiently particular and is suppressed; Gmail account not suppressed
The Google email search warrant was sufficiently particular to narrow the search to documents pertaining to a particular land transaction. The search warrant for defendant’s Apple phone and accounts, however, was insufficiently particular and is suppressed. The affidavit attempted to … Continue reading
D.Conn.: That accomplices communicated by text messaging justified SW for cell phone
This cell phone was with probable cause and was particular. “Here, the warrant affidavits clearly established probable cause to conclude that Sinisterra was involved in all three shootings described therein. He was implicated by two individuals who corroborated each other … Continue reading
Reason: Yes, Warrants Allow a Search Through the Whole Phone
Reason: Yes, Warrants Allow a Search Through the Whole Phone by Orin S. Kerr (“A comment on a mistaken way to limit computer searches— focusing on People v. Carson from the Michigan Court of Appeals.”):
NY2: SW for def’s cell phone browser history lacked PC, but here it was harmless error
“The defendant correctly contends that the police search of his browsing history and URLs of his Blackberry cell phone was not authorized by the search warrant obtained by the police. ‘To establish probable cause, a search warrant must provide sufficient … Continue reading
D.N.M.: Accidental finding of A-C communications in cell phone search was not intentional and did not compromise defendant’s Sixth Amendment right to counsel
Defendant’s Apple cell phone was searched with a warrant, and the contents were shared with defense counsel even before the government completed its own review. It was discovered that there were attorney-client communications on the phone, and the government immediately … Continue reading
D.P.R.: Cut-and-paste error that misidentified iPhone model overlooked by correct phone number
The search warrant was for a specific phone number on an iPhone 6S, but the phone with that number was an iPhone 13. Still, the phone number controlled, and the search was valid. Alternatively, on the totality, defendant consented to … Continue reading
VA: Capias for detention of person not functional equivalent of arrest warrant; no PC finding
A Virginia capias for detention of a person is not the functional equivalent of an arrest warrant founded on sworn probable cause. The police view of the inside of defendant’s home that led to a search warrant is suppressed. Commonwealth … Continue reading
CA8: Affiant officer’s belief that criminals brag about crimes on social media allows cell phone search in a gun case
“We conclude the affidavit adequately established probable cause that Ivey’s cell phone would contain evidence of a firearms offense. Officers found the phone in Ivey’s possession while he was located in a vehicle with a gun under his seat. The … Continue reading
N.D.Ga.: Use of cell phone cash app to facilitate PPP fraud justified SW for phone
Use of a cell phone cash app to facilitate spending PPP loan fraud justified warrant for phone. United States v. Foster, 2024 U.S. Dist. LEXIS 11369 (N.D. Ga. Jan. 22, 2024). Codefendant’s case: United States v. Baptiste, 2024 U.S. Dist. … Continue reading
DE: The PC for cell phone was limited to search history; SW otherwise overbroad
Defendant was accused of sexual contact with a four-year-old girl he was caring for. Her mother kicked him out of the house and sought a forensic exam of the child. A couple of days later, she found his cell phone … Continue reading
Cal.5: Defective notice of Facebook warrant under CalECPA doesn’t require suppression
Defendant’s Facebook account was accessed by a search warrant issued under CalECPA. The notice provision was not complied with by the state, but the court declines to suppress here. The standard for suppression in CalECPA is the same as for … Continue reading
N.D.Fla.: No standing against tracking a stolen cell phone
Defendant claimed a Brady violation for failure to disclose a Stingray device was used to track the victim’s cell phone in his possession. It’s not. Moreover, defendant doesn’t even have standing in a stolen cell phone. Bass v. Dixon, 2023 … Continue reading
D.Mass.: Inevitable discovery applies to def giving up passcode to cell phone
Inevitable discovery applies to defendant giving up the passcode to his cell phone by a statement he challenged. The government had an independent basis to get into the phone to search it. United States v. Xiaolei Wu, 2024 U.S. Dist. … Continue reading
OH11: Running passenger’s ID through database didn’t violate Rodriguez
With no Ohio cases on point, looking to federal cases, the court concludes that running the passenger’s ID too was incidental to the stop and didn’t unreasonably extend it. State v. Foti, 2024-Ohio-39, 2024 Ohio App. LEXIS 47 (11th Dist. … Continue reading