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- D.N.M.: DEA’s failure to make a detailed inventory in violation of policy doesn’t require exclusion of evidence
- WaPo: These cities bar facial recognition tech. Police still found ways to access it.
- C.D.Cal.: SW materials in case with weighty public interest ordered unsealed
- DC: Accepting a law license is consent to trust account subpoenas
- AR: RS def rented a hotel room was sufficient for search waiver; PC not required
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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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Fourth Amendment cases,
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Congressional Research Service:
--Electronic Communications Privacy Act (2012)
--Overview of the Electronic Communications Privacy Act (2012)
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--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: E-mail
Cert. granted: United States v. Microsoft Corp.
Cert. granted: United States v. Microsoft Corp., 17-2 (ScotusBlog) Issue: Whether a United States provider of email services must comply with a probable-cause-based warrant issued under 18 U.S.C. § 2703 by making disclosure in the United States of electronic communications … Continue reading
M.D.Ala.: Govt’s email SW in identity theft scheme is overbroad; applications need to be limited and resubmitted
The government’s email search applications are overbroad and don’t sufficiently protect the privacy rights of the account holders. The government, however, can limit the applications and submit them again. “The Magistrate Judge’s denial of the search warrant applications was not … Continue reading
E.D.Pa.: Extraterritorial Gmail SW enforced
A search warrant for Google email stored extraterritorially will be enforced. In re Search Warrant No. 16-960-M-1, 2017 U.S. Dist. LEXIS 131230 (E.D. Pa. Aug. 17, 2017). The request to search did not come during an unavoidable lull in the … Continue reading
D.D.C.: SCA allows SW for Google email stored overseas
Google’s storing information overseas doesn’t make it immune to a court order in the U.S., disagreeing with the Second Circuit’s Microsoft I decision. In re Search of Information Associated with [Redacted]@gmail.com that is Stored at Premises Controlled by Google, Inc., … Continue reading
S.D.N.Y.: The email SW here was limited by time and crime and that made it reasonable and not a general warrant
It is too easy for an email warrant to be a general warrant because there has to be an articulation of what the government is looking for. Moreover, all the emails may be seized so they can be searched looking … Continue reading
D.Nev.: An email warrant can be for servers outside the jurisdiction of the court
A search warrant for email can be for servers outside the jurisdiction of the court. United States v. McGuire, 2017 U.S. Dist. LEXIS 114471 (D. Nev. Feb. 9, 2017). The Coast Guard was surveilling Arroyo Quemada Beach in Santa Barbara … Continue reading
M.D.Ala.: Govt’s email SW in identity theft scheme is overbroad; applications need to be limited and resubmitted
The government’s email search applications are overbroad and don’t sufficiently protect the privacy rights of the account holders. The government, however, can limit the applications and submit them again. In the Matter of the Search of Information Associated with Fifteen … Continue reading
Lexology: Administrative Law Judge Winnows OFCCP’s Data Request [to Google]
Lexology: Administrative Law Judge Winnows OFCCP’s Data Request by William Hays Weissman:
Law360: Google, Microsoft, Yahoo Needn’t Give Email Info To Gov’t
Law360: Google, Microsoft, Yahoo Needn’t Give Email Info To Gov’t by Shayna Posses:
D.Ariz.: 4A does not apply to non-U.S. person’s emails sent from overseas but stored in U.S.
The Fourth Amendment does not apply to court orders to obtain emails of a non-U.S. person created and sent from outside the country but stored in the U.S. Even if it did, the orders complied with the Fourth Amendment. United … Continue reading
Techno Examiner: Facebook Gag Order For User Account Search Warrants
Techno Examiner: Facebook Gag Order For User Account Search Warrants by Juliana Dante:
E.D.Wis.: Doesn’t matter that Google stores E-mails offshore
The fact the server on which the emails sought by the government are outside the United States doesn’t mean that the government can’t get them by valid process. The court declines to follow Matter of Warrant to Search a Certain … Continue reading
ZDNet: Facebook gives moderators “full access” to user accounts suspected of terror links
ZDNet: Facebook gives moderators “full access” to user accounts suspected of terror links by Zack Whittaker: Facebook has a fleet of low-paid contractors who are tasked with investigating possible connections with terrorism on its site. The key takeaway: Moderators are … Continue reading
D.Kan.: Email and computer SWs were necessarily broad, but not unreasonably broad
“These were not warrants to search for ‘any and all information’ or ‘all computer information’ in defendant’s house. See Christie, 717 F.3d at 1165. Rather, the attachments effectively limited the scope of the searches to material relevant to specific federal … Continue reading
CA9: SW for one CP message board user’s email account led to finding CP for defendant; no 4A violation
A search warrant was obtained for the email account of a user of the Dark Moon messaging board for users of child pornography. After searching that one, officers got permission to use the email account. That did not lead to … Continue reading
D.D.C.: Google has to produce e-mails on server in Ireland, declining to follow 2d Cir. in Microsoft II
After Second Circuit split 4-4 on whether Google could be compelled to provide e-mails stored in a server in Ireland by a warrant, a USMJ in D.C. holds that Google has to produce e-mails stored on that server. In the … Continue reading
Constitution Center: A Twenty-First Century Framework for Digital Privacy
Constitution Center: A Twenty-First Century Framework for Digital Privacy: Balancing Privacy and Security in the Digital Age by Jeffrey Rosen: Introduction: A Twenty-First Century Framework for Digital Privacy At the beginning of the twenty-first century, breathtaking changes in technology pose … Continue reading
N.D.Cal.: Google mail stored overseas but only accessible from U.S. subject to SW here
The Stored Communications Act can apply extraterritorially when the data is stored overseas but it can only be accessed from Google here in the U.S. In re Search of Content that is Stored at Premises Controlled by Google, 2017 U.S. … Continue reading
TN: Defense can’t use state SDT to get access to witness’s stored communications under SCA
The State lacked standing to challenge the subpoenas issued to its witnesses and electronic communications service providers seeking cell phone and social media communications because it had no personal right, privilege, or proprietary interest in the electronic communications at issue, … Continue reading
D.Neb.: There is no REP in jail calls
Defendant’s jail calls were known by him to be subject to monitoring, and he had no reasonable expectation of privacy in them. There was probable cause for the search warrant for defendant’s email, giving the magistrate’s finding the due deference … Continue reading