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- Lawfare: How Google’s Location History Program Could Upend Digital Surveillance Law
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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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--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: Cell site location information
CA9: CP SW affidavit didn’t have to exclude possibility of IP spoofing to show PC
Affiant didn’t have to exclude the possibility of IP spoofing in a child pornography case search warrant request to show probable cause . Moreover, it wouldn’t be apparent until the forensic analysis if there was. United States v. Saterstad, 2021 … Continue reading
W.D.Ark.: Officer acting outside his local jurisdiction isn’t 4A issue
“Mr. van Leeuwen also claims that Boone County officers were without jurisdiction when they arrested him in his Marion County home, in alleged violation of Arkansas Code § 14-15-501. However, ‘[a] police violation of state law does not establish a … Continue reading
NE requires suppression issue be renewed when evidence admitted at trial
Failure to renew a suppression issue decided against you pretrial when the evidence is admitted is waiver in Nebraska. Besides, the issue on appeal would lose on the merits because the officer had reasonable suspicion for the stop and then … Continue reading
NY: SW for premises did not include vehicle parked there for which separate PC wasn’t shown
Defendant was long under surveillance for drug deals, and a search warrant was obtained for his person and premises. It did not include his vehicles. The search authorization did not encompass his vehicle on the premises outside the house, and … Continue reading
GA: CSLI lawfully obtained in 2013 was subject to GFE
The acquisition of defendant’s CSLI in 2013 followed law at the time and was reasonable, and the good faith exception applied. Carpenter came four years after the trial. Lofton v. State, 2021 Ga. LEXIS 28 (Feb. 15, 2021). The officers … Continue reading
Pre-Carpenter CSLI was in good faith
The CSLI order here pre-dated Carpenter, and it was based on probable cause. Since Carpenter wasn’t retroactive, the motion to suppress is denied. United States v. Stamat, 2021 U.S. Dist. LEXIS 14268 (D.Minn. Jan. 26, 2021).* Defendant’s CSLI was obtained … Continue reading
Geofence warrants can be used to identify those who invaded the Capitol, not to mention Facebook warrants
The government’s prior use of geofence warrants were a prelude to this: With the invasion of the Capitol on Wednesday, the government now can attempt to locate all the cell phones inside the Capitol to identify those to potentially charge. … Continue reading
CA11: Not IAC to not challenge recording jail calls
Defense counsel wasn’t ineffective for not challenging recording jail calls [actually stated as a 2254(d) failure]. Garcia v. Sec’y, 2021 U.S. App. LEXIS 314 (11th Cir. Jan. 6, 2021).* The CSLI warrant was particular and not a general warrant, and … Continue reading
Arstechnica: CBP’s warrantless use of cell phone location data is under investigation
Arstechnica: CBP’s warrantless use of cell phone location data is under investigation by Jon Brodkin (“Inspector general audits purchases of data that would otherwise require warrants.”)
MA: Obtaining CSLI by SW in 2014 was independent source against 2010 obtaining by request (and Carpenter was 2018)
The state obtained defendant’s CSLI without a showing of probable cause in 2010. In 2014, they sought it again with a search warrant. Carpenter came in 2018. The independent source doctrine applied in the 2014 search, and defense counsel wasn’t … Continue reading
WV: Officer’s subjective belief in his ability to arrest DUIs statewide was unreasonable under Heien
“However, Heien does offer some insight into the type of ‘mistake’ which may provide relief-the area upon which the circuit court below focused. The Court concluded that ‘[t]he Fourth Amendment tolerates only reasonable mistakes, and those mistakes-whether of fact or … Continue reading
CA5: No standing or REP in the CSLI of another
Defendant didn’t have a reasonable expectation of privacy (standing) in the movements of a cell phone of another. Still, it was with a warrant, and there is no defect in the warrant process. United States v. Beaudion, 2020 U.S. App. … Continue reading
OH12: Drug dog’s alert to residual odor of drugs is not a lack of PC
A drug dog’s alert to the residual odor of drugs isn’t a lack of probable cause. “Accordingly, the fact that Mox [the drug dog] could have alerted to a residual odor of drugs does not mean that there was not … Continue reading
AZ: CSLI order here in 2014 wasn’t a “warrant” but it complies with GFE
Also in a death penalty case, defendant’s CSLI was obtained by court order four years before Carpenter. The court finds that, while it wouldn’t treat the “order” as the functional equivalent of a search warrant [“reasonable grounds” wasn’t probable cause; … Continue reading
MA: SW for CSLI for too much time was severable
The search warrant for too many hours of CSLI was overbroad: “The collection of extended CSLI data raises significant constitutional concerns.” Three hours is all that could be shown was necessary. The overbroad part, however, could be severed, and suppression … Continue reading
PA: CSLI warrant was particular with phone number and time, without name of owner
CSLI warrant was particular when it described the phone number and time period and didn’t have to name the phone owner. Commonwealth v. Davis, 2020 Pa. Super. LEXIS 885 (Oct. 23, 2020). The officer spent a week corroborating the CI, … Continue reading
GA: Search incident to arrest without PC is suppressed
The trial court did not apply the beyond a reasonable doubt standard to the search, contrary to the state’s argument. It did apply the preponderance standard, and the record supports its finding that the state failed to show probable cause … Continue reading
N.D.Cal.: Officer doesn’t need RS before contacting def with a suspicionless search waiver
Defendant had a suspicionless parole search waiver, and the officer doesn’t even need cause for the encounter. United States v. Jackson, 2020 U.S. Dist. LEXIS 189471 (N.D. Cal. Oct. 13, 2020). The affidavit for the search warrant of defendant’s tax … Continue reading
Vice: Motherboard: The IRS Is Being Investigated for Using Location Data Without a Warrant
Vice: Motherboard: The IRS Is Being Investigated for Using Location Data Without a Warrant (“The IRS used smartphone location data from a contractor to try and track Americans without a warrant.”)
S.D.Fla.: Arresting ptf for giving officer the finger after denial of access to city council meeting lacked arguable PC
Officer didn’t have arguable probable cause for arresting plaintiff outside a city council meeting plaintiff had been ordered out of when plaintiff gave the officer the finger. Qualified immunity denied based on the allegations of the complaint. McDonough v. Mata, … Continue reading