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Recent Posts
- Reason: “the Supreme Court’s oral argument yesterday in Barnes v. Felix will be noteworthy.”
- E.D.Mich.: “Imprint” of a gun in the pocket can be RS def is carrying
- D.R.I.: Motion in limine about SW is denied; govt can refer to search in trial
- E.D.Tenn.: Applying the Sixth Circuit’s “drug dealer inference,” PC exists for the SW for def’s house
- CA9: Consent obtained by trickery is not voluntary
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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 -
© 2003-25,
online since Feb. 24, 2003 Approx. 500,000 visits (non-robot) since 2012 Approx. 47,000 posts since 2003 (30,000+ on WordPress as of 12/31/24) -
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Fourth Amendment cases,
citations, and links -
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Congressional Research Service:
--Electronic Communications Privacy Act (2012)
--Overview of the Electronic Communications Privacy Act (2012)
--Outline of Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012)
--Federal Statutes Governing Wiretapping and Electronic Eavesdropping (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: Computer and cloud searches
D.Minn.: Overdose call justified frisk
Police encountered defendant because he was experiencing an overdose. A frisk of his pockets for the cause produced a gun. United States v. Wright, 2024 U.S. Dist. LEXIS 236845 (D. Minn. Nov. 25, 2024), adopted, 2025 U.S. Dist. LEXIS 4921 … Continue reading
M.D.Tenn.: Five-month-old information about CP on a Pinterest account not stale
There was probable cause for this child pornography warrant. Information about a Pinterest account that was five months old was not stale, and the images were adequately identified. United States v. Lynch, 2025 U.S. Dist. LEXIS 2633 (M.D. Tenn. Jan. … Continue reading
D.Mass.: 17-day delay between seizure and SW was reasonable
“[T]he government’s seventeen-day delay between the warrantless seizure of Thompson’s property and the issuance of the search warrants was reasonable. The first factor favors the government because seventeen days—eleven of which were business days—is relatively short and far shorter than … Continue reading
MT: Search of electronics under SW needs to start by SW expiration, not be completed
The search warrant for numerous electronic devices (phones and tablets) was served within ten days but the search couldn’t be completed for longer than that. The grant of the motion to suppress because of the delay is reversed. The warrant … Continue reading
S.D.N.Y.: No stay of execution of a computer and cell phone SW after def was indicted
Defendant was arrested in Malaysia and a computer and cell phones were seized. He was then indicted in NYC. The nine-day delay in getting a warrant was not unreasonable considering defendant was in custody and unable to use them. A … Continue reading
D.Mass.: Copying electronic device for delayed search is not per se unreasonable
In an electronic search, the government copied the device’s memory for later search, and the probable cause did not get stale during the delay. Because of the capacity of electronic devices, this is the most efficient manner of searching. United … Continue reading
D.S.D.: SW for 11 years of iCloud lacked all particularity and GFE didn’t save it
The warrant here authorized search of defendant’s iCloud account for 11 years worth of information despite the probable cause being limited to one event in 2022. The warrant was based on a template that authorized search of the entire account, … Continue reading
OR: SW not particular for wholesale digital searches
The electronic search categories any digital storage devices in this search warrant are not particular under the state constitution. Remanded for determination of remedy. State v. Curry, 336 Or. App. 72 (Nov. 6, 2024):
Pre-Ordering “The Digital Fourth Amendment” by Orin S. Kerr
Reason: You Can Now Pre-Order “The Digital Fourth Amendment” by Orin S. Kerr (“My book will be out January 10th, but you can pre-order it now.” “I’m pleased to say that you can now pre-order my book, The Digital Fourth … Continue reading
FL1: Def’s refusal to admit computer searched was his denies him standing
At the suppression hearing, defendant refused to claim ownership of the computer the subject of the motion to suppress. Therefore, he has no standing. Alternatively, the good faith exception saves the search even if there was no probable cause. Bates … Continue reading
D.D.C.: Even if electronic search protocol is a const’l requirement, GFE applies
The lack of an electronics search protocol in the warrant, even if it was constitutionally required, doesn’t even have to be decided because of the good faith exception. “Okafor suggests that the Constitution might nonetheless demand that a warrant specify … Continue reading
Brownstone Institute: A Fourth Amendment for the 21st century
Brownstone Institute: A Fourth Amendment for the 21st century by Daniel Nuncio (“‘Twentieth-century Fourth Amendment law was really written for a world before computers,’ stated Reilly Stephens, an attorney with the Liberty Justice Center, in an early September interview. ‘It … Continue reading
Harvard Law Review: Tech Companies’ Terms of Service Agreements Could Bring New Vitality to the Fourth Amendment
Harvard Law Review: Tech Companies’ Terms of Service Agreements Could Bring New Vitality to the Fourth Amendment by Brent Skorup [that is, if they choose to do anything about it]:
N.D.Cal.: iCloud SW was particular as to subject and time
This iCloud warrant was based on probable cause and was particular and had a specific time limit. “Certain of the categories of evidence authorized for seizure by the February iCloud Warrant may appear overbroad in isolation but are sufficiently particular … Continue reading
CA4: Def left car door open in traffic stop and that enabled plain view
Defendant’s stop was valid, and he got out of the car leaving the door open. The officer could see the firearm in the car, and that’s plain view. United States v. Bailey, 2024 U.S. App. LEXIS 20336 (4th Cir. Aug. … Continue reading
NM: 19-day delay getting a SW for a computer was reasonable considering the diminished possessory interest in it
“The district court concluded, after weighing Defendant’s diminished possessory interest in the tablet and the legitimate interests of law enforcement, that under the circumstances, the nineteen-day delay between when the tablet was seized and when a search warrant was obtained … Continue reading
Reason: Internet Preservation and the Fourth Amendment—Case Updates, Part I
Reason, The Volokh Conspiracy: Internet Preservation and the Fourth Amendment—Case Updates, Part I by Orin S. Kerr (“The first of two rulings, and why I find it unpersuasive.”):
W.D.Ky.: Delayed search of a computer was not unreasonable under either 4A or Rule 41(e)(2)(B)
The delayed search of defendant’s computer was not unreasonable under the Fourth Amendment or Rule 41(e)(2)(B) because it wasn’t practical to do so at the scene. United States v. White, 2024 U.S. Dist. LEXIS 117526 (W.D. Ky. July 3, 2024).* … Continue reading
CA9: 4A claim of manufactured PC is a new form of Bivens claim and is barred
Plaintiff’s complaint against DHS that agents fabricated probable cause to have him prosecuted is a new form of claim Bivens will not recognize. Sheikh v. U.S. Dep’t of Homeland Sec., 2024 U.S. App. LEXIS 16441 (9th Cir. July 5, 2024). … Continue reading
CT: Pretrial detainees still have no REP in jail calls
There is no constitutional distinction between pretrial detainees and convicts in a jail for the reasonable expectation of privacy in telephone calls on a jail line phone they knew was recorded. State v. Bember, 2024 Conn. LEXIS 153 (June 25, … Continue reading