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Recent Posts
- AR: RS def rented a hotel room was sufficient for search waiver; PC not required
- LA5: No standing to challenge search of shooting victim’s cell phone in def’s possession
- N.D.Okla.: Cell phones possessed by tribal police not subject to return under Rule 41(g)
- E.D.Ark.: Landlord and tenant refused rental property inspection and SW was validly issued and protected privacy interests
- D.D.C.: Judge shopping after denial of SW inappropriate; could have appealed to DJ
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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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Congressional Research Service:
--Electronic Communications Privacy Act (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
W.D.N.Y.: Failure to preserve a recording of issuance of a SW required by NY law is not a 4A issue
Failure to preserve a recording of issuance of a search warrant as required by New York law is not a Fourth Amendment issue. United States v. Bailey, 2021 U.S. Dist. LEXIS 212869 (W.D.N.Y. Nov. 3, 2021). “Recognizing that this case … Continue reading
CA7: Parole search of cell phone doesn’t require SW
Riley doesn’t require a search warrant for a parole search of a cell phone. The arrest was for drugs and the cell phone search found child pornography, and it is not suppressed. United States v. Wood, 2021 U.S. App. LEXIS … Continue reading
ABA: Litigation: Overbroad Searches and Seizures: Google Customer Data Stored Outside of Gmail
ABA: Litigation: Overbroad Searches and Seizures: Google Customer Data Stored Outside of Gmail, 48 Litigation 49 (No. 1, Oct. 1, 2021) by Mark Mermelstein, Sharon Frase, and Alison Epperson (“Tech giant customer data can contain most of a user’s electronic … Continue reading
W.D.Ark.: 16 mo. delay in forensic search of electronics was not unreasonable; PC “remained viable”
The omitted facts from the affidavit for defendant’s child pornography search warrant had no bearing on the probable cause determination, so the Franks challenge fails. Defendant’s claim that the affidavit’s reference to two successful downloads of child pornography was false … Continue reading
ID: RS as to driver and officer safety extends to passenger, too
When a traffic stop turns into reasonable suspicion for other crime, the reasonable suspicion extends to being able to control the passenger, too, for officer safety. There is no reasoned basis for differentiating between drivers and passengers for officer safety. … Continue reading
M.D.Fla.: SW for cell phone permitted accessing his apps via internet with phone
The search warrant for defendant’s cell phone was issued with probable cause. The permissible scope of search included applications on the phone but having to go to the internet via the app. Moreover, the warrant for searching the phone included … Continue reading
Orin S. Kerr, Decryption Originalism: The Lessons of Burr
Orin S. Kerr, Decryption Originalism: The Lessons of Burr, 134 Harv. L. Rev. 905 (2021):
EFF: Your Service Provider’s Terms of Service Shouldn’t Overrule Your 4A Rights
EFF: Your Service Provider’s Terms of Service Shouldn’t Overrule Your Fourth Amendment Rights by Jennifer Lynch:
CA8: Warrantless seizure of computer in fraud case was reasonable because of exigency
The warrantless seizure of defendant’s computer was justified by exigent circumstances that it contained evidence of fraud. United States v. Mays, 2021 U.S. App. LEXIS 9861 (8th Cir. Apr. 6, 2021). “Because we conclude that the officer’s initial question about … Continue reading
E.D.N.Y.: SW for email on devices as evidence of wire fraud permits seizure and search of the devices
Where the crux of a wire fraud is provable by email, a search warrant for defendant’s electronic devices was reasonable because cell phones and computers would likely have email access on them. That was just common sense, and the affiant … Continue reading
CA7: Pre-Riley warrantless cell phone search saved by GFE
Defendant’s cell phone was searched without a warrant pre-Riley under law at the time. “If the evidence collected during the search was to be admitted, he contends, it was only through the application of the good-faith exception recognized in Davis … Continue reading
W.D.Wash.: iCloud SW temporal limit was impractical
An iCloud search warrant was not overbroad because the warrant sought a lot of material. Based on Apple’s protocols, it essentially had to be, and a time restriction wouldn’t be of any use. United States v. Woolard, 2021 U.S. Dist. … Continue reading
D.N.M.: Tracing IP address to def does not require affiant exclude all other Internet users in area
Defendant was charged with stalking a former boss. A disguised email was traced by metadata to defendant’s router. His computer was searched, and the email was found. The question of probable cause for the search warrant does not require the … Continue reading
CA7: Computer search condition was not related to crime of conviction and was thus unreasonable
Defendant’s computer search release condition had no rational relationship to the crime. He was not a sex offender and there was no computer link to his crimes. United States v. Morgan, 2021 U.S. App. LEXIS 2972 (7th Cir. Feb. 3, … Continue reading
CNS: Judges Grapple With Phone, Laptop Searches at US Customs
CNS: Judges Grapple With Phone, Laptop Searches at US Customs by Thomas Harrison (“The First Circuit struggled Tuesday with a policy that lets border agents look through the phones or laptops of travelers returning from abroad.”)
New Law Review: The Fourth Amendment Limits of Internet Content Preservation
Orin Kerr, The Fourth Amendment Limits of Internet Content Preservation, forthcoming in the St. Louis University Law Journal. Abstract:
W.D.La.: Protective sweep for AK-47 was reasonable on knock-and-talk for weapon, denial of entry, and smelling MJ; one officer was to leave for SW
Police properly conducted a protective sweep for an AK-47 after a knock-and-talk did not gain entry. Police had an anonymous source, and defendant was an alleged felon in possession, and they went for a knock-and-talk. Defendant refused to consent, and … Continue reading
CO: Judicial officer who leaked info about SW he signed was censured, but only after removal from office, a federal obstruction conviction, and disbarment
The respondent former judge told a friend to avoid a certain person when a drug task force search warrant was signed by him for the target. He was federally charged and pled guilty to obstruction of justice and was disbarred … Continue reading