Defendant’s computer was seized with a search warrant, and he filed an action before the issuing Magistrate Judge to challenge the search of the computer before it occurred. The court holds that he has no such right; his remedy is after the execution of the warrant. United States v. Stoufflet, 2007 U.S. Dist. LEXIS 56346 (N.D. Ga. August 1, 2007):
The Court is unaware of, and has not been directed to, any authority supporting the right of a defendant or one who arguably has standing to challenge the use of evidence obtained via a search warrant to challenge the validity of the warrant before it is executed. The opinion in [In the Matter of the Search of: 3817 W. West End, First Floor Chicago, Ill. 60621] supplies no such support, because in that case, the government moved ex parte to remove certain limitations imposed upon its agents in conducting a computer search pursuant to a warrant. After the court orally denied the relief requested, the court issued a written order. See 3817 W. West End, 321 F. Supp. 2d at 954. The target of the search did not participate in that hearing.
Instead, analogous to the former Fifth Circuit’s statement in United States v. Payne, 508 F.2d 1391, 1394 (5th Cir. 1975) (citation omitted), that “[a] homeowner has no right to prevent officers armed with a warrant from entering his home,” Stoufflet has no right to prevent agents armed with a warrant from searching his computer. There are safeguards to protect Stoufflet from law enforcement abuses:
[t]he statutory requirements of judicial supervision based on probable cause, the requisites of specificity in describing the premises and the items to be seized, and the delivery of a written inventory of the items taken to the occupant or other competent person provide adequate safeguards against potential abuse and sufficiently limit police discretion.
Payne, 508 F.2d at 1394 (footnote omitted). Stoufflet’s interests are sufficiently protected by his ability to attempt to exclude any evidence at trial obtained as a result of the search of the computer or by a Bivens civil action.
Additionally, the relief that Stoufflet seeks would seriously disrupt the efficient administration of justice. Acceding to Stoufflet’s position would require courts to hold an adversary hearing whenever a computer was seized in advance of the computer search, in order to address such questions as whether there was a Franks violation, whether there was probable cause to search specific files, or whether confidential communications were contained on the computer. Neither the Fourth Amendment nor any rule of criminal procedure mandates this action in advance of a search.
Defendants had objective probable cause for plaintiff’s arrest and qualified immunity. Dampier v. King County, 2007 U.S. Dist. LEXIS 56404 (W.D. Wash. August 2, 2007).*
Valid stop led to the officer having reasonable suspicion to believe that the defendant was carrying a load of drugs in the car. Defendant was excessively nervous and would not look the officer in the eye. After the papers were handed over and the defendant was told he could go, he got out of the patrol car, but the officer headed him off and stopped him and asked for consent to search the car which the court found was valid. It was all on video. United States v. Gamez, 2007 U.S. Dist. LEXIS 56261 (D. Utah August 1, 2007).* (Comment: I was with the court on this one, right up to the time the officer headed the defendant off and asked for consent seven times and then the court rationalizes its justification by saying that the defendant “was not surprised” by the search. Why should he be surprised? It was obvious what was going down after being asked seven times.)
Defendant showed up in the parking lot of a motel where a known drug dealer was staying, and the officers walked up to his car to talk to him. That was not a seizure. Defendant’s evasion led to reasonable suspicion. United States v. Barton, 2007 U.S. Dist. LEXIS 56365 (D. Vt. August 1, 2007).*
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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, Let it Bleed (album, 1969)
"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]
“Children grow up thinking the adult world is ordered, rational, fit for purpose. It’s crap. Becoming a man is realising that it’s all rotten. Realising how to celebrate that rottenness, that’s freedom.” – John le Carré, The Night Manager (1993), line by Richard Roper
"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)
The book was dedicated in the first (1982) and sixth (2025) editions to Justin William Hall (1975-2025). He was three when this project started in 1978.
