Federal Magistrate Judge John Facciola was introduced during a 2008 conference as the ‘Italian Stallion of e-discovery.’ Long at the forefront on technology and the law, Facciola is back in the national spotlight over the scope of prosecutors’ power to access electronically stored information.
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A child pornography search warrant for all computers and computer-like stuff on the premises is not overbroad. Defendant’s business record argument analogy completely fails. United States v. Fernandez, 2014 U.S. Dist. LEXIS 50818 (D. N.J. April 11, 2014).*
Defendant’s consent was valid. He was handcuffed and had the consent form translated for him. He was originally detained with guns drawn, but they’d been holstered. He was unhandcuffed to sign the form, and he did. On the totality, the court finds the consent voluntary. United States v. Valle-Garcia, 2014 U.S. Dist. LEXIS 51194 (D. Nev. April 14, 2014).*
The FBI agent in this case was Spanish trained and was previously posted for two years each in Mexico and Puerto Rico where he had to speak Spanish all the time. Defendant’s claim that his dialect is Cuban rather than Mexican, if true, doesn’t show anything because there’s no showing they’re at all different. His testimony on defendant’s consent is credited. United States v. Valle-Garcia, 2014 U.S. Dist. LEXIS 51982 (D. Nev. March 25, 2014),* R&R 2014 U.S. Dist. LEXIS 51194 (D. Nev. April 14, 2014).*
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2255 petitioner pled guilty rather than pursue the suppression motion. That was a valid strategic choice to get the 3 levels off the offense level for acceptance of responsibility. Nettles v. United States, 2014 U.S. Dist. LEXIS 50963 (D. Md. April 11, 2014):
Defendant’s consent to search of his computers during his 8th of 15 proffers led to his being charged, and it violated the proffer agreement. Then a search warrant was issued for the computers to defendant’s bankruptcy trustee. United States v. Scott, 2014 U.S. Dist. LEXIS 51245 (D. Mass. April 14, 2014):
Just because the facts could be more specific is not a Franks challenge. Here, probable cause was shown.
United States v. Adams, 2014 U.S. Dist. LEXIS 50090 (E.D. Mich. April 11, 2014).*
2255 petitioner’s IAC claim was based in small part on a search claim that was already litigated in the original case and he lost. He elaborates on it not at all. Denied. United States v. Parker, 2014 U.S. Dist. LEXIS 51046 (E.D. Pa. April 11, 2014).*
Defendant came to the police station voluntarily to talk to the police after a search warrant had been executed at his house. Therefore, he was not in custody. United States v. Bender, 2013 U.S. Dist. LEXIS 186962 (E.D. Wis. October 31, 2013).*
The officer responding to a 911 call of a shirtless man in dreds swinging a stick in February could enter defendant’s gate to talk to him. Inside the gate, it appeared defendant was seriously high on something and had white powder smeared around his nose and mouth. His furtive movement justified the officer approaching. The court applies Jardines to the entry onto the curtilage and finds it reasonable under all the circumstances. A protective sweep of the house was also reasonable under all the circumstances. United States v. Woods, 2013 U.S. Dist. LEXIS 186973 (S.D. W.Va. April 8, 2013):
LA County requires that adult film producers obtain a permit and requires performers to use condoms during vaginal and anal intercourse. They have to keep the permit on display, and county health inspectors can enter at any time to inspect for condom use. The ordinance is challenged on various grounds. On the Fourth Amendment claim, if entry is denied, they still have to get a warrant to enter, so it passes Fourth Amendment scrutiny. (The court never says that the adult film industry is closely regulated by LA County, and it seems it is not. It can’t be because it would be impossible to regulate at all. But they’re trying, to the point of the porn industry moving to adjoining counties or Las Vegas.) Vivid Entm’t, LLC v. Fielding, 965 F. Supp. 2d 1113 (C.D. Cal. August 16, 2013):
Even if defendant was not shown a search warrant during the search (a fact in dispute), that’s not a ground to suppress. It violates Rule 41, but not the Fourth Amendment. United States v. Harley, 2014 U.S. Dist. LEXIS 49396 (M.D. Pa. April 10, 2014):
Police recording the one side of a telephone conversation they could already hear did not implicate the Electronic Communications Privacy act. United States v. Ray, 2014 U.S. Dist. LEXIS 49647 (M.D. Pa. April 10, 2014):
The emergency aid exception to the warrant requirement applies to life-threatening emergencies involving animals. The legislature has made it clear that animal abuse is against the law. “In addition to promoting life-saving measures, the ability to render such assistance vindicates the legislative framework for preventing cruelty to animals ….” Commonwealth v. Duncan, 467 Mass. 746, 7 N.E.3d 469 (2014): Continue reading →
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Notice the new format, in WordPress, after ten days of converting data. After the crash a few weeks ago, we found we could transport all the old posts to WordPress. Earlier, it wasn’t economically feasible, and now it was.
Sunday’s postings will come Monday morning. Besides, Mondays are always light days from Lexis.
The officer lacked reasonable suspicion that defendant was armed to justify a frisk. Defendant, inter alia, made no furtive movements, and asked why the officers had to search him and his demeanor changed when it came up. Nothing here indicates risk of a weapon. Reversed. State v. Rodriguez-Perez, 2014 Ore. App. LEXIS 433 (April 9, 2014)*:
"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.
