- D.Nev.: Affidavits for SWs don’t have to prove the underlying crimes
- D.V.I.: Flyover of curtilage from navigable airspace was reasonable
- NJ: Disputes in the facts on appeal show trial court should have held a hearing
- NY: Second SW for phone a year later after first SW failed to show PC wasn’t timely
- GA: Not objecting to mention of “probation” search at trial was not IAC
ABA Journal Web 100, Best Law Blogs (2017); ABA Journal Blawg 100 (2015-16) (discontinued 2018)
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book
online since Feb. 24, 2003 Approx. 350,000 visits (non-robot) since 2012 Approx. 45,000 posts since 2003 (25,700+ on WordPress as of 12/31/22)
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"If it was easy, everybody would be doing it. It isn't, and they don't."
“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!”"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."
---Pepé Le Pew
—Johnson v. United States, 333 U.S. 10, 13-14 (1948)
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Category Archives: Computer and cloud searches
CA8: Exit border search of electronic devices was based on reasonable suspicion
There was reasonable suspicion for defendant’s intensive exit border search of his electronic devices. “The officers and agents had background information, much of it corroborated, that provided a basis for assessing Xiang’s actions in May and June 2017. Their experience … Continue reading
PA: No standing to challenge Google SW for who searched rape victim’s name before crime
In a home invasion rape case, the state sought from Google search information involving the victim’s name in the 48 hours before the rape, and there were searches for that from defendant’s IP address. Defendant had no reasonable expectation of … Continue reading
NACDL: 4 articles on electronic searches
Clare Harvie, What Defense Counsel Should Know About Facial Recognition Technology, 47 Champion 16 (No. 3, May 2023) Jennifer S. Granick, Marking Warrants Great Again: Avoiding General Searches in the Execution of Warrants for Electronic Data, 47 Champion 28 (No. … Continue reading
Ga.Bar J.: Who Should Guard the Attorney-Client Privilege When Documents are Seized by Law Enforcement
Don Samuels & Scott Grumman, Who Should Guard the Attorney-Client Privilege When Documents are Seized by Law Enforcement, 28 Ga. Bar J. 19 (No. 4 Feb. 2023) (“Some cases may involve seizures of computers and other devices that contain millions … Continue reading
OR: For particularity in electronic devices, specify what will be found
In Oregon, “For searches of electronic devices, a warrant is specific enough to satisfy the particularity requirement if it ‘describe[s], with as much specificity as reasonably possible under the circumstances, what investigating officers believe will be found’ on the device, … Continue reading
By 2022, one would think that all would know planning a crime with Google searches would be incriminating; but no
Yahoo news: Brian Walshe pleads not guilty to murder: Everything we know about the case: In court Wednesday, prosecutor Lynn Beland said investigators believe Brian Walshe dismembered his wife and disposed of her remains after using their son’s iPad to … Continue reading
E.D.Tenn.: 11 day delay in getting computer SW not unreasonable
Depending on how one counted the time between the seizure of the cell phone and the search warrant, it was either 3 or 11 days, and either is reasonable. United States v. Deakins, 2023 U.S. Dist. LEXIS 6661 (E.D. Tenn. … Continue reading
Bloomberg: Google Keyword Search Warrants Questioned by Colorado Lawyers
Bloomberg Law: Google Keyword-Search Warrants Questioned by Colorado Lawyers (“Lawyers for the arson case defendant maintain that Google must search billions of users to respond to keyword search warrants, raising privacy implications far beyond Colorado. ‘This is a really significant new … Continue reading
D.N.J.: No 6A right to have counsel present at execution of a DNA warrant in the jail
There is no Sixth Amendment right for counsel to be present when a DNA sample is taken from defendant at the jail by warrant. United States v. Hubbard, 2023 U.S. Dist. LEXIS 3661 (D.N.J. Jan. 9, 2023). CBP had reasonable … Continue reading
S.D.Ill.: Extrinsic evidence is admissible in a Franks challenge
Extrinsic evidence of alleged falsity in a Franks challenge is admissible. United States v. Smith, 2022 U.S. Dist. LEXIS 234002 (S.D. Ill. Dec. 20, 2022). Questioning defendant about the presence of a firearm in his vehicle fell within the Quarles … Continue reading
WI: REP in Cloud storage of data from warrantless search
A public employee’s Dropbox account was searched without a warrant by seeking to enter by his user name and changing the password. There is a reasonable expectation of privacy in Cloud storage of digital data when one does not share … Continue reading
The Epoch Times: Google Gave FBI Location Data for Over 5,000 Devices in Jan. 6 Probe
The Epoch Times: Google Gave FBI Location Data for Over 5,000 Devices in Jan. 6 Probe: Filing (“Mr. Rhine had a Fourth Amendment interest in his Location History data, and the warrant was overbroad and lacking particularity under the Fourth Amendment.”)
S.D.N.Y.: Two years to search a password protected computer, and more after mistrial, was not unreasonable
The government got a search warrant for defendant’s computer in days, but it took two years to complete the forensic review because of password protection. The two-year delay was thus not unreasonable. After a mistrial, the government kept searching, and … Continue reading
techdirt: Device Searches Have Created A Massive Database Of American Phone Data CBP Agents Can Search At Will
techdirt: Device Searches Have Created A Massive Database Of American Phone Data CBP Agents Can Search At Will by Tim Cushing:
CA8: Independent source justified search despite illegal protective sweep
“Herbert Green previously appealed the denial of his motion to suppress drugs and firearms discovered in his apartment during a law enforcement search outside the scope of the police’s warrant. See United States v. Green, 9 F.4th 682, 691-93 (8th … Continue reading
CA9: Private searcher mimicking her computer search for police was reasonable
Defendant’s former girlfriend found child pornography on his computer. She took the computer to the Reno sheriff’s office, and the police there had her show them what she did and go no farther. This was admitted by the government to … Continue reading
CA7: RS present for border search of thumb drives of convicted sex offender
Defendant had a prior sex offense with a minor from 1997. HSI started investigating him in 2015 for his travels to Ukraine. “Skaggs frequently traveled overseas; Skaggs was the director of the Ukrainian Angels Resource Network, according to his LinkedIn … Continue reading