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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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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: Overbreadth
E.D.Va.: CP SW for images “created, modified or stored in any form,” including electronically included a cell phone
A child pornography search warrant for images “created, modified or stored in any form,” including electronically included a cell phone. As to defendant’s Franks challenge, his complaint about hearsay completely fails because whatever the police had, they obtained another person’s … Continue reading
S.D.Ga.: Seizure of all emails since inception of account shown justified
A warrant seeking emails from the opening of the account was justified by the nature of the probable cause alleged and the time period at issue. Also, even if the officer went too far, the good faith exception would have … Continue reading
NY3: Building didn’t appear to be two units; SW for def’s dwelling, he answered door, and then they saw
The search warrant’s describing the dwelling as a single family dwelling when it was really two and defendant lived on the second floor didn’t make it overbroad. It did not appear to be a multi-unit dwelling and defendant answered the … Continue reading
CA6: Seizure under SW was valid despite a catchall phrase because it was severable; suppression of phone search reversed
Defendants were suspected of committing a series of home invasion robberies, and they were charged with racketeering. The district court suppressed the searches of their phones for the use of language too general. The government concedes there was an overbroad … Continue reading
NYLJ: Judge Urges Action to Curb ‘Overbroad’ Digital Search Warrants
NYLJ: Judge Urges Action to Curb ‘Overbroad’ Digital Search Warrants by Andrew Denney: Overbroad search warrants for digital evidence are “all too common” in New York, are often green-lighted by busy judges who are focused on processing motions and are … Continue reading
CA10: Catch-all phrase with “not limited to” in SW makes it overly general and no GFE
In an unpublished opinion (that will at least be in Federal Appendix), the Tenth Circuit holds that the use of a “catch-all” phrase and “not limited to” in a search warrant made it incurably overbroad. The court also held that … Continue reading
MA: PC was shown for searching def’s cell phone for messages to and from murder victim; SW’s overbreadth was cured by searchers’ limiting scope of search
Probable cause was shown to search defendant’s cell phone for text messages and calls from the murder victim. The victim’s phone wasn’t found, and it was logical there could be information on the phone and the victim’s was taken to … Continue reading
MS: SW request was for blood alcohol but SW said drugs too; warrant not unreasonable or overbroad
The showing of probable cause for defendant’s blood testing specified alcohol, but the warrant actually said alcohol or drugs could be tested for. This was not unreasonable considering defendant’s driving which was a part of the probable cause. Roberts v. … 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
OH12: SW for text messages on a cell phone was not overbroad where it was limited to messages from one person
Defendant was a police officer who was suspected of sexual battery of a student ride along. There were text messages, and a search warrant was obtained for his cell phone. The lack of a time frame for the text messages … Continue reading
M.D.Ala.: Govt’s email SW in identity theft scheme is overbroad; applications need to be limited and resubmitted
The government’s email search applications are overbroad and don’t sufficiently protect the privacy rights of the account holders. The government, however, can limit the applications and submit them again. “The Magistrate Judge’s denial of the search warrant applications was not … Continue reading
CA11: In search of computer for evidence of hacking, lack of time frame or search protocol doesn’t violate 4A
The search warrant for defendant’s computer was for evidence of “hacking” but produced child pornography. The lack of a time frame and search protocol for the search doesn’t make it violate the Fourth Amendment. “Considering the specific circumstances and complexities … Continue reading
CA11: Order to Apple to unlock iPad was reasonable under All Writs Act and New York Telephone
The district court’s order to Apple to unlock defendant’s iPad was reasonable and appropriate under the All Writs Act and United States v. New York Telephone Co. Also, seizing an entire Facebook account wasn’t “open and shut” a general warrant, … Continue reading
S.D.N.Y.: The email SW here was limited by time and crime and that made it reasonable and not a general warrant
It is too easy for an email warrant to be a general warrant because there has to be an articulation of what the government is looking for. Moreover, all the emails may be seized so they can be searched looking … Continue reading
M.D.Ala.: Govt’s email SW in identity theft scheme is overbroad; applications need to be limited and resubmitted
The government’s email search applications are overbroad and don’t sufficiently protect the privacy rights of the account holders. The government, however, can limit the applications and submit them again. In the Matter of the Search of Information Associated with Fifteen … Continue reading
D.Kan.: Email and computer SWs were necessarily broad, but not unreasonably broad
“These were not warrants to search for ‘any and all information’ or ‘all computer information’ in defendant’s house. See Christie, 717 F.3d at 1165. Rather, the attachments effectively limited the scope of the searches to material relevant to specific federal … Continue reading
S.D.N.Y.: Govt couldn’t use “all records exception” because of lack of PC support
Securities fraud warrant was way overbroad and can’t be saved by the “all records exception” to search defendant’s business and apartment and seize even personal records. The search was so intrusive it violated the Fourth Amendment because there wasn’t sufficient … Continue reading
TX: Texas Const. grants no special protection to third party information; here CSLI and numbers dialed
Third party cell phone information is not protected by the Texas Constitution. It grants no greater rights than the Fourth Amendment. If the drafters wanted it broader, they could have said so. The information was available to law enforcement under … Continue reading
N.D.Cal.: Officers knew or should have known target location was multifamily; SW for gun in one unit didn’t permit search of all five
“The issue in defendant Josue Olman Martinez’s motion to suppress is whether it was reasonable for officers to continue to search a property that they may have initially assumed was a single family residence once they knew or should have … Continue reading