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ABA Journal Web 100, Best Law Blogs (2017); ABA Journal Blawg 100 (2015-16) (discontinued 2018)
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© 2003-23,
online since Feb. 24, 2003 Approx. 350,000 visits (non-robot) since 2012 Approx. 45,000 posts since 2003 (25,700+ on WordPress as of 12/31/22)~~~~~~~~~~~~~~~~~~~~~~~~~~
Fourth Amendment cases,
citations, and linksLatest Slip Opinions:
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To search Search and Seizure on Lexis.com $Research Links:
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Federal Law Enforcement Training Center Resources
FBI Domestic Investigations and Operations Guide (2008) (pdf)
DEA Agents Manual (2002) (download)
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Stringrays (ACLU No. Cal.) (pdf)
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)
ACLU on privacy
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NACDL’s Domestic Drone Information Center
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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!”
"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."
---Pepé Le Pew
—Johnson v. United States, 333 U.S. 10, 13-14 (1948)
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Category Archives: Cell phones
D.S.D.: Two anonymous tips about a car built upon one another and provided RS
Two anonymous tips about a car built upon one another and finding the car on the interstate was reasonable suspicion. United States v. Gonzalez, No. 422-CR-40119-KES, 2023 U.S. Dist. LEXIS 167068 (D.S.D. Sep. 15, 2023). Defendant was indicted for conspiring … Continue reading
TX1: SW for cell phone in jail property room was not stale
The search warrant for defendant’s cell phone in a burglary case was not based on stale information. She was in custody and her phone was in her property. Cell phone information is enduring. Veal v. State, 2023 Tex. App. LEXIS … Continue reading
CA5: Riley does not apply to border searches of cell phones
The search of defendant’s cell phone at the border was reasonable. The court will not apply Riley to border searches. Malik v. United States Dep’t of Homeland Sec., 2023 U.S. App. LEXIS 21307 (5th Cir. Aug. 15, 2023). “The undersigned … Continue reading
W.D.Okla.: Pepper spray use under the circumstances was reasonable
“Anthony argues that Gottschalk used excessive force when he sprayed him with OC spray, which the court now refers to as pepper spray. Applying the Graham factors and considering the totality of the circumstances, the court concludes that a reasonable … Continue reading
E.D.Pa.: Cell phone passcode given by consent, but Cellebrite can open phone anyway
Defendant consented to giving up the passcode to his phone. The court notes in n.2 that Cellebrite can crack the passcodes. United States v. Frey, 2023 U.S. Dist. LEXIS 141180 n.2 (E.D. Pa. Aug. 14, 2023). Defendant was reasonably denied … Continue reading
NY4: No limitation in cell phone search was included, and it was thus not particular
The cell phone warrant sought all information on it about a 48 hour period without limitation, and it was vague and overbroad. “The warrant contained no language incorporating any other documents or facts. Significantly, the search of the phone was … Continue reading
M.D.Fla.: A records preservation request to cell phone providers was not a seizure
A records preservation letter sent to cell phone providers was not a seizure, let alone an unreasonable one. The records were later secured by search warrant. United States v. Zwiefelhofer, 2023 U.S. Dist. LEXIS 134679 (M.D. Fla. Aug. 2, 2023). … Continue reading
Army: Affidavit for SW didn’t show why text messages would still be on def’s cell phone; but harmless error
The government did not show in the affidavit for search authorization that text messages would logically be found on his cell phone corroborating a sex crime victim. Nevertheless, he wasn’t prejudiced by it. United States v. Geranen, 2023 CCA LEXIS … Continue reading
W.D.Tex.: Halfway house tenant has no REP in own cell phone
A resident of a halfway house has no reasonable expectation of privacy in his cell phone while residing there. He agreed that his property was subject to search. United States v. Weste, 2023 U.S. Dist. LEXIS 132886 (W.D. Tex. July … Continue reading
CA11: Lawyers were arrested for interfering with cell phone search
In a CPS-type case, there was a search warrant for two cell phones with alleged child pornography on them, and officers were going to execute them outside a hearing in the courthouse. Watching on surveillance video, officers saw the phones’ … Continue reading
CA8: Pulling off a blanket during a stop on slight RS was unreasonable
Defendant got off a Greyhound bus in Omaha during a driver change. The officers just barely had reasonable suspicion to detain defendant, and pulling his blanket off amounted to a search. That enabled the officer to see he had a … Continue reading
W.D.Va.: Info on def’s cell phone provided nexus for SW of house
Information on defendant’s cell phone linking him and Trafficker A also linked his home to the transactions and that showed nexus. United States v. Johnson, 2023 U.S. Dist. LEXIS 130082 (W.D. Va. July 27, 2023).* The information about defendant’s drug … Continue reading
techdirt: Top Court In Illinois Says Compelling Password Production Isn’t A 5A Violation
techdirt: Top Court In Illinois Says Compelling Password Production Isn’t A Fifth Amendment Violation by Tim Cushing. Case posted here.
E.D.N.Y.: Compelled use of fingerprint to open cell phone not testimonial
Seeking to have defendant use his fingerprint to unlock his cell phone was not testimonial. The Second Circuit hasn’t ruled yet. “Nevertheless, the Court is persuaded by the weight of authority in other circuits, which holds that the compelled use … Continue reading
E.D.Tenn.: SW for a cell phone includes the SD card in it
A search warrant for a cell phone includes the SD card in it. United States v. Glatz, 2023 U.S. Dist. LEXIS 114963 (E.D. Tenn. July 5, 2023). A jury question on probable cause to arrest remained, and that avoids qualified … Continue reading
RI: Exigency of hot pursuit in a homicide case made pinging cell phone reasonable
Despite Carpenter saying it is limited to historical CSLI, this court concludes there is no meaningful difference between real-time and historical CSLI under Carpenter. Exigency, however, was real. The police were in hot pursuit seeking to question defendant for a … Continue reading
CA5: No preliminary injunction for copying attorney cell phone at border
An immigration attorney who claimed the government copied his cell phone four times after he returned from other countries wasn’t entitled to a preliminary injunction. “Government retention of unlawfully seized property is not sufficient, standing alone, to establish irreparable injury.” … Continue reading
CA5: Only RS needed for a routine manual border search of a cell phone
The Fifth Circuit follows other circuits to require only reasonable suspicion for a routine manual border cell phone search. Having found child pornography, the government could keep looking. “He argues that the government violated the Fourth Amendment by conducting the … Continue reading
