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- 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
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- 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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--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)
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Category Archives: Overbreadth
D.Conn.: While def should have presented affidavit of standing, the SW inventory supports his standing
In a corporate office search, defendant should have presented an affidavit to show his standing in the office space. Despite that, however, the government’s search inventory strongly supports his standing because it shows documents taken from what was described as … Continue reading
WA: Child porn SW permitted search and seizure of adult porn, and that made it overbroad; merely citing the CP statute doesn’t narrow it
Where a child pornography search warrant also permitted seizure of adult pornography which is not unlawful, it was overbroad under established precedent for 23 years. Merely citing the child pornography in the search warrant wasn’t a cure. State v. Besola, … Continue reading
CA6: SW for person by alias and description was valid when he was under surveillance from issuance to execution
Warrants are usually directed at places and things not people, but here was a search warrant directed at defendant by his known alias and description. From the time it was issued until it was executed, defendant was under surveillance. It … Continue reading
CO: Cell phone SW for indicia of ownership did not permit search of every folder in the phone
A cell phone search warrant for indicia of ownership did not permit search of every folder in the phone; that would be a general warrant. People v. Herrera, 2015 CO 60, 2015 Colo. LEXIS 1011 (Oct. 26, 2015). Syllabus by … Continue reading
S.D.W.Va.: Heroin and other drug warrant was not overbroad despite boilerplate language
A search warrant for heroin that was otherwise boilerplate as to other controlled substances and all the things that officers always want to look for in drug cases was not overbroad. And good faith still applies. United States v. McCarrall, … Continue reading
CA11: Overbreadth challenge fails for computers on wireless at a fire station
Defendant was a fireman who was suspected of actively downloading child pornography via a P2P connection at work. Certain representations in the affidavit about the investigators trying to pickup the wireless signal outside the station and who was on duty … Continue reading
CA10: Even if SW was overbroad, it was approved by DA before issuing magistrate got it, and they could reasonably rely on it
Even if a search warrant was overbroad in describing items to be seized with the requisite particularity, police officers were improperly denied qualified immunity since the warrant was approved by a district attorney and issued by a detached and neutral … Continue reading
CA6: “In this respect, we must be mindful of the particular exigencies presented to the officers, who must make decisions to safeguard their own and the public’s safety under the fog of rapidly developing situations and without the luxury of complete information.”
Individually, none of the factors of reasonable suspicion was enough, but collectively they were. “In this respect, we must be mindful of the particular exigencies presented to the officers, who must make decisions to safeguard their own and the public’s … 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
DE: Search warrant for some things and “other items that may be stolen” wasn’t overbroad where officers used a list
A Franks challenge in Delaware requires an affidavit from the defendant, and there isn’t one. The Franks claim is, at best, only a conclusory statement that the officer had an ends-justifies-the-means mentality, but, as a whole, probable cause is shown. … Continue reading
WaPo: New article: “Executing Warrants for Digital Evidence: The Case for Use Restrictions on Nonresponsive Data”
WaPo: New article: “Executing Warrants for Digital Evidence: The Case for Use Restrictions on Nonresponsive Data” by Orin Kerr: I recently posted a new draft article, “Executing Warrants for Digital Evidence: The Case for Use Restrictions on Nonresponsive Data.” The … Continue reading
E.D.Mich.: In a doctor patient records search, details of ten overprescriptions supported warrant for 343 more patient records
Officers had a search warrant for 353 patient files of a doctor accused of overprescribing. The affidavit detailed 10 but included a list of 343 that it alleged followed the same pattern. The search warrant was not overbroad as to … Continue reading
LA: Probationer in the house of another probationer during a PO home visit was searched with RS
Defendant was a probationer in the house of another probationer when the other probationer was subjected to a home visit. After finding marijuana in the bedroom, the officers conducted a protective search of defendant and found drugs. The search was … Continue reading
IL: Mere “acceptance” of a package for an anticipatory warrant is overbroad
This anticipatory warrant’s triggering condition was “accept[ance]” of a package, not opening it although there were devices on it to tell the police that, too. Mere acceptance of the package makes it overbroad and vests too much discretion in the … Continue reading
N.D.Ind.: Incorporation of affidavit saves a general warrant for computers and a Facebook account
Defendant’s Facebook post “involved in to kill public officials and destroy government buildings,” including the obligatory disclaimer of exercising free speech rights, led to three search warrants. The warrant was for computers and electronics but it didn’t specify what the … Continue reading
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
D.Del.: Even though this SW was a “general warrant,” it was relied on in good faith
The search warrant was overbroad and potentially a general warrant, but it was, essentially, close enough for government work and it wasn’t entirely clear a search warrant was necessary at the time to search a cell phone. The remedy is … 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
CA6: PC for a cell phone SW shown because it was used in a fraud case; computer search standards applied and satisfied
In a fraud case, probable cause was shown to search a cell phone for both evidence of the fraud and text messages where the co-conspirators were communicating with each other. Nexus was shown because defendant was using his cell phone … Continue reading
D.Nev.: SW request for Apple to unlock iPads and iPhones denied as a general search and without search protocol
The government’s request for a search warrant for Apple to unlock and override passwords on four iPads and two iPhones is denied. The search warrant application lacks probable cause and no search warrant protocol for electronic devices. It amounts to … Continue reading