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- Lawfare: How Google’s Location History Program Could Upend Digital Surveillance Law
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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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--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: Overbreadth
N.D.Ohio: The residence had two front doors but could not be definitively determined to be two residences before search; search still valid when it was two
The residential building searched had two front doors but one address. This suggested that it might be two residences, but police investigating couldn’t find any indication that it was two, not one. In any event, the warrant was based on … Continue reading
Cal.: Partial overbreadth can lead to suppression in egregious cases with flagrant constitutional violations, but this isn’t one
While partial overbreadth can lead to suppression of everything seized in an egregious case with flagrant misconduct, this isn’t one: “And as in Bradford and Kraft, we conclude that the facts here do not warrant this extreme remedy.” “According to … Continue reading
CA2: Pending 2255 petition justifies denial of Rule 41(g) petition
The business’s petition for return of records obtained by search warrant and grand jury subpoena is denied. The business’s principal is still litigating his criminal case and a 2255 is pending, and that justifies it. Allen v. Grist Mill Capital … Continue reading
AR: HBO film crew ride-along on drug raid doesn’t lead to suppression
An HBO film crew was doing a ride-along with the DEA and local DTF officers for the making of “Meth Storm.” Defendant raises via post-conviction that the ride-along film crew violated the Fourth Amendment and the state constitution. The court … Continue reading
N.D.Ga.: SW for defendant’s email to show his and others’ state of mind at time of crime was not overbroad
The search warrant for defendant’s email accounts to show where he was when he accessed it, “evidence relating to the planning, execution, furtherance and/or concealment of the crimes under investigation,” and his “and other participants’ state of mind as it … Continue reading
techdirt: Court Rejects Extremely Broad Google Search Warrant, Citing Both Carpenter And Riley
techdirt: Court Rejects Extremely Broad Google Search Warrant, Citing Both Carpenter And Riley by Tim Cushing. The case is State v. Grace from Ohio, posted here.
CA9: SW was wholesale overbroad, and QI not properly preserved for appeal
“The Second Search Warrant authorized, among other things, without any limitation as to time, the seizure of a vast array of ‘[f]inancial information’ related to Mr. Moore and ‘associated businesses’ that constitute evidence of a crime and all electronics that … Continue reading
MD reiterates search incident doctrine
Maryland reiterates search incident. “Considering these cases together, a clearer picture of the search incident to arrest exception emerges. Pacheco reminds us that, for the exception to apply, there must first exist probable cause to arrest before conducting the search. … Continue reading
PA: SW for flashlight app data on cell phone sustained
The affidavits for search warrant for this cell phone were overbroad as to what was sought lacking probable cause except for location data and use of the flashlight function. Defendant was accused of using the flashlight on his cell phone … Continue reading
OR: Cell phone SW in part for “evidence related to the crimes under investigation” was overbroad
The search warrant for defendant’s cell phone was specific as to particular images but general as to others, and it is suppressed as to the others. “The fact that the media command limited the media search to ‘evidence related to … Continue reading
GA: SW for practically everything on cell phone was a general warrant
The search warrant for defendant’s cell phone was overbroad, essentially permitting a general search of the entirety of information on it. Limiting it to a homicide was of no help. The good faith exception also does not apply. The fact … Continue reading
IA: With a judicial finding of PC, there’s no immediate right to release on bail without a bail hearing
There was probable cause for arrest involving a magistrate’s issuance of the warrant. Because there is probable cause, there’s no right to immediate release on bond under the state and federal constitutions’ bail provisions. Howsare v. Iowa Dist. Court for … Continue reading
D.Md.: Cell phone dump on a SW wasn’t shown to be overbroad
A cell phone dump after a search warrant wasn’t necessarily overbroad, and didn’t show it. “More particularity was impractical, and was not required.” United States v. Nelson, 2022 U.S. Dist. LEXIS 125994 (D. Md. July 15, 2022). Officers who used … Continue reading
CA6: No 4A requirement to file SW before execution
No case says that failure to file a search warrant before it is executed violates the Fourth Amendment (or state law, not that state law matters in federal court). United States v. Dixon, 2022 U.S. App. LEXIS 19457 (6th Cir. … Continue reading
NY Bronx: SDT for text message information was overbroad; SW should be sought instead
The court concludes a subpoena duces tecum to T-Mobile for text message information was overbroad. The court recommends the state apply for a search warrant instead. People v. Nelson, 2022 NY Slip Op 50630(U), 2022 N.Y. Misc. LEXIS 2968 (Bronx … Continue reading
IN: State const’l arguments have to be raised in trial court first
Defendant’s argument for a change in standing law under the state constitution that he should have the ability to challenge the search of another person’s person and clothing wasn’t raised below, so it’s waived. State v. Allen, 2022 Ind. App. … Continue reading
D.D.C.: J6 Committee’s subpoena to RNC not unreasonably overbroad
J6 Committee’s subpoena for records to the RNC does not violate the Fourth Amendment; it’s within Congress’s power. Republican National Committee v. Pelosi, 2022 U.S. Dist. LEXIS 78501 (D.D.C. May 1, 2022):
NY Co.: SW for cell phone without time limitation was unreasonable
One search warrant for searching defendant’s phone with Cellebrite was without time limitation and was overbroad. People v. Gonzalez, 2022 NY Slip Op 22074, 2022 N.Y. Misc. LEXIS 928 (N.Y.Co. Mar. 7, 2022). Defendant claimed his jail calls after 48 … Continue reading