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FBI Director James B. Comey recently announced that the FBI had discovered new emails that might be relevant to the investigation of Hillary Clintons email server. The emails were discovered in an unrelated case, and the FBI now plans to search through the emails as part of the Clinton server investigation.

Comeys announcement raises an important legal question: Does expanding the FBIs investigation from the unrelated case to the Clinton case violate the Fourth Amendment?

We dont know all the facts yet, so its somewhat hard to say. But heres why the expansion of the investigation might be constitutionally problematic. Consider this a tentative analysis unless and until more facts emerge.

From what I can patch together, the FBI was investigating former congressman Anthony Weiner for potential crimes involving sexting with an underage girl. As part of the investigation, the FBI seized Weiners laptop to search it for evidence of the sexting crimes. I would guess, although I havent yet been able to confirm, that the FBI obtained a warrant to search Weiners computer. The Fourth Amendment would generally require a warrant to search a suspects personal computer unless there are special circumstances such as consent that havent been mentioned in press reports.

The case connects to Clinton because the laptop happens to have been shared by Weiner and his now-estranged wife, Huma Abedin, who is an important adviser to Hillary Clinton. [UDPATE: Abedin has since stated that the computer only belonged to Weiner, and that she did not use it.] In the course of searching Weiners laptop, the FBI came across emails in Abedins email account that appeared to the agents to be relevant to the Clinton email server case. According to news reports, the FBI now is planning to get a warrant to search the laptop for emails related to the Clinton server case. They havent obtained that warrant yet, however, so the Weiner computer has not yet been subject to a comprehensive search.

Former Rep. Anthony Weiner (D-N.Y.) has repeatedly been exposed for sending lewd messages and photos to women online. Here's a definitive guide to his sexting scandal. (Peter Stevenson/The Washington Post)

If these facts so far are accurate, the FBI may have violated the Fourth Amendment in expanding the investigation from Weiner to Clinton. Heres the problem. If the FBI was searching Weiners computer, it presumably had a warrant authorizing the search of the computer only for Weiners communications with underage girls. If that is correct, going from that narrow search to a broader search of Clintons emails raises two potential problems for the FBI.

The first issue is whether the FBI was permitted to search through Abedins email account for records of Weiners illegal messages with underage girls. In People v. Herrera, 357 P.3d 1227 (Colo. 2015), the Colorado Supreme Court provided some reason to think that the answer may be no. In Herrera, the government had a warrant authorizing the search of a cellphone for messages between the defendant and an undercover officer who had posed as a underage girl. When the police executed the warrant, the officers also searched a folder that contained messages between the defendant and a different (real) underage girl. The court held that searching the folder violated the Fourth Amendment because the only evidence authorized to be seized in the warrant the messages between the defendant and the undercover officer werent likely to be in the folder containing messages between the defendant and the other girl. I have criticized that reasoning, but it raises questions about whether the FBI could look through Abedins account for Weiners illegal emails.

There might be similar problems because the alleged Weiner texting crimes apparently occurred in 2016. I gather that the Clinton emails were from her time as secretary of state, which was several years earlier from 2009 to 2013. If Im right that there was a several-year gap between the warrant crime and the second investigation, its not clear the government could search through older emails for evidence of such a recent crime. See Wheeler v. State, 135 A.3d 282 (Del. 2016) (holding that the Fourth Amendment was violated when a warrant to search computers for witness tampering that occurred in 2013 did not include a date restriction on how far back the search could extend; evidence of crime from a computer not used since 2012 suppressed as a result).

A second issue is whether the FBI was permitted to seize the Abedin emails, which were outside the scope of the warrant, and to use them to reopen the investigation into Clintons email server. I think this is the bigger legal issue for the FBI. Most courts have treated this as a matter of the plain view exception. If the government is searching a computer, and it comes across files that are outside its warrant but are clear evidence of second unrelated crime, the usual government practice is to take those files and use them to get a second warrant to search the computer for the second crime. Thats what the FBI appears to be doing here. They are getting a second warrant after discovering Abedins emails because what was likely a first warrant for Weiners emails wouldnt justify the second and broader search. See, e.g., United States v. Carey, 172 F.3d 1268 (10th Cir. 1999).

But if thats true, theres a problem: The plain view exception does not allow evidence to be seized outside a warrant unless it is immediately apparent upon viewing it that it is evidence of another crime. Just looking quickly at the new evidence, there needs to be probable cause that it is evidence of a second crime to justify its seizure, which would presumably be necessary to apply for the second warrant. See Arizona v. Hicks, 480 U.S. 321 (1987); United States v. Williams, 592 F. 3d 511, 522 (4th Cir. 2010).

Democratic candidate Hillary Clinton's private email server was once again pushed into the lime light when FBI Director James B. Comey announced that he would resume looking into the case with less than two weeks before the election. The development has left the campaign scrambling to head off the potentially game-changing damage. (Alice Li/The Washington Post)

But its not clear how that would be the case here. Comeys letter to Congress is really tentative. It says that the FBI has discovered emails that appear to be pertinent to the Clinton investigation. Comey then says that the FBI should take appropriate investigative steps designed to allow investigators to review these emails to determine whether they contain classified information, as well as to assess their importance to our investigation. One report says that the FBI has no idea about the content of the emails.

The Fourth Amendment plain view standard doesnt allow a seizure of emails based on a mere we-hope-to-later-determine standard. The government cant seize the emails just because the Clinton investigation is extra important and any possible evidence is worth considering. Rather, the Fourth Amendment requires the initial look at the emails to generate immediate probable cause that they are evidence of a crime first, before their seizure is permitted and used to get a second warrant.

Was the plain view discovery sufficiently clear and illuminating that it gave the FBI that probable cause? We dont yet know.

I should add that the scope of the plain view doctrine for computer searches is very much in flux, which adds some uncertainty to this issue. For example, the FBI might argue that using the discovery of the Clinton emails to apply for a second warrant was permitted by the first warrant and is not an additional seizure and therefore does not need to be justified. By that reasoning, the FBI is free to scour Weiners laptop for evidence of any other crimes for as long as it wants, and to take its time to see if there is enough evidence to justify a second warrant.

I think thats a somewhat hard argument to make in light of the plain view cases such as Carey and Williams, but its at least possible. I should also add that some courts and scholars, myself included, have suggested that the plain view doctrine should be narrowed or even eliminated in computer search cases. Under that reasoning, expanding the search becomes more clearly problematic. See this recent article for more on my views.

I should also flag the question of whose rights are at issue, which determined who would have standing to enforce their rights. The computer was used by Weiner and Abedin, which means that its only their Fourth Amendment rights, not Clintons or other staffers, that are potentially at stake. Hypothetically, if the FBI violated the Fourth Amendment in the course of getting to the Clinton emails, and the emails end up revealing crimes involving Clinton staffers and Clinton, the only Clinton person who could move to suppress the evidence would be Abedin.

As I noted at the beginning, this a tentative analysis unless and until more facts emerge. My apologies if I missed some relevant facts that have already been disclosed. I looked around, but in my haste to get out a post I very well might have missed something. Ill probably be pretty busy Sunday, but Ill try to update the post if necessary if I missed something big thanks in advance for your patience.

See the original post here:
FBI may have violated the Fourth Amendment in expanding the ...

United States Constitution

Twenty-fourth Amendment, amendment (1964) to the Constitution of the United States that prohibited the federal and state governments from imposing poll taxes before a citizen can participate in a federal election. It was proposed by the U.S. Congress on August 27, 1962, and was ratified by the states on January 23, 1964.

In 1870, following the American Civil War, the Fifteenth Amendment, guaranteeing the right to vote to former slaves, was adopted. The Twenty-fourth Amendment was adopted as a response to policies adopted in various Southern states after the ending of post-Civil War Reconstruction (186577) to limit the political participation of African Americans. Such policies were bolstered by the 1937 U.S. Supreme Court decision in Breedlove v. Suttles, which upheld a Georgia poll tax. The Supreme Court reasoned that voting rights are conferred by the states and that the states may determine voter eligibility as they see fit, save for conflicts with the Fifteenth Amendment (respecting race) and the Nineteenth Amendment (respecting sex). It further ruled that a tax on voting did not amount to a violation of privileges or immunities protected by the Fourteenth Amendment. In short, because the tax applied to all votersrather than just certain classes of votersit did not violate the Fourteenth or Fifteenth Amendment.

During the civil rights era of the 1950s, particularly following the Brown v. Board of Education decision in 1954, such policies increasingly were seen as barriers to voting rights, particularly for African Americans and the poor. Thus, the Twenty-fourth Amendment was proposed (by Sen. Spessard Lindsey Holland of Florida) and ratified to eliminate an economic instrument that was used to limit voter participation. Two years after its ratification in 1964, the U.S. Supreme Court, invoking the Fourteenth Amendments equal protection clause, in Harper v. Virginia Board of Electors, extended the prohibition of poll taxes to state elections.

The full text of the amendment is:

Section 1The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.

Section 2The Congress shall have power to enforce this article by appropriate legislation.

amendment (1920) to the Constitution of the United States that officially extended the right to vote to women.

...the United States to deny federal funds to local agencies that practiced discrimination. Efforts to increase African American voter participation were also helped by the ratification in 1964 of the Twenty-fourth Amendment to the Constitution, which banned the poll tax.

...in Southern states into the 20th century. Some states abolished the tax in the years after World War I, while others retained it. Its use was declared unconstitutional in federal elections by the Twenty-fourth Amendment to the U.S. Constitution, effective in 1964. In 1966 the Supreme Court, going beyond the Twenty-fourth Amendment, ruled that under the equal protection clause of...

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Twenty-fourth Amendment | United States Constitution ...

The Twenty-fourth Amendment (Amendment XXIV) of the United States Constitution prohibits both Congress and the states from conditioning the right to vote in federal elections on payment of a poll tax or other types of tax. The amendment was proposed by Congress to the states on August 27, 1962, and was ratified by the states on January 23, 1964.

Southern states of the former Confederacy adopted poll taxes in laws of the late 19th century and new constitutions from 1890 to 1908, after the Democratic Party had generally regained control of state legislatures decades after the end of Reconstruction, as a measure to prevent African Americans and often poor whites from voting. Use of the poll taxes by states was held to be constitutional by the Supreme Court of the United States in the 1937 decision Breedlove v. Suttles.

When the 24th Amendment was ratified in 1964, five states still retained a poll tax: Virginia, Alabama, Texas, Arkansas, and Mississippi. The amendment prohibited requiring a poll tax for voters in federal elections. But it was not until 1966 that the U.S. Supreme Court ruled 63 in Harper v. Virginia Board of Elections that poll taxes for any level of elections were unconstitutional. It said these violated the Equal Protection Clause of the Fourteenth Amendment. Subsequent litigation related to potential discriminatory effects of voter registration requirements has generally been based on application of this clause.

Poll tax

Cumulative poll tax (missed poll taxes from prior years must also be paid to vote)

No poll tax

Southern states adopted the poll tax as a requirement for voting as part of a series of laws intended to marginalize black Americans from politics so far as practicable without violating the Fifteenth Amendment. This required that voting not be limited by "race, color, or previous condition of servitude." All voters were required to pay the poll tax, but in practice it most affected the poor. Notably this impacted both African Americans and poor white voters, some of whom had voted with Populist and Fusionist candidates in the late 19th century, temporarily disturbing Democratic rule. Proponents of the poll tax downplayed this aspect and assured white voters they would not be affected. Passage of poll taxes began in earnest in the 1890s, as Democrats wanted to prevent another Populist-Republican coalition. Despite election violence and fraud, African Americans were still winning numerous local seats. By 1902, all eleven states of the former Confederacy had enacted a poll tax, many within new constitutions that contained other provisions to reduce voter lists, such as literacy or comprehension tests. The poll tax was used together with grandfather clauses and the "white primary", and threats of violence. For example, potential voters had to be "assessed" in Arkansas, and blacks were utterly ignored in the assessment.[2]

From 19001937, such use of the poll tax was nearly ignored by the federal government. Some state-level initiatives repealed it. The poll tax survived a legal challenge in the 1937 Supreme Court case Breedlove v. Suttles, which ruled that "[The] privilege of voting is not derived from the United States, but is conferred by the state and, save as restrained by the Fifteenth and Nineteenth Amendments and other provisions of the Federal Constitution, the state may condition suffrage as it deems appropriate."[3]

The issue remained prominent, as most African Americans in the South were disenfranchised. President Franklin D. Roosevelt spoke out against the tax. He publicly called it "a remnant of the Revolutionary period" that the country had moved past. However, Roosevelt's favored liberal Democrats lost in the 1938 primaries to the reigning conservative Southern Democrats, and he backed off the issue. He felt that he needed Southern Democratic votes to pass New Deal programs and did not want to further antagonize them.[4] Still, efforts at the Congressional level to abolish the poll tax continued. A 1939 bill to abolish the poll tax in federal elections was tied up by the Southern Block, lawmakers whose long tenure in office from a one-party region gave them seniority and command of numerous important committee chairmanships. A discharge petition was able to force the bill to be considered, and the House passed the bill 25484.[5] However, the bill was unable to defeat a filibuster in the Senate by Southern senators and a few Northern allies who valued the support of the powerful and senior Southern seats. This bill would be re-proposed in the next several Congresses. It came closest to passage during World War II, when opponents framed abolition as a means to help overseas soldiers vote. However, after learning that the US Supreme Court decision Smith v. Allwright (1944) banned use of the "white primary," the Southern block refused to approve abolition of the poll tax.[6]

In 1946, the Senate came close to passing the bill. 24 Democrats and 15 Republicans approved an end to debate, while 7 non-southern Democrats and 7 Republicans joined with the 19 Southern Democrats in opposition. The result was a 39-33 vote in favor of the bill, but the filibuster required a two-thirds supermajority to break at the time; a 48-24 vote was required to pass the bill.[clarification needed] Those in favor of abolition of the poll tax considered a constitutional amendment after the 1946 defeat, but that idea did not advance either.[7]

The tenor of the debate changed in the 1940s. Southern politicians tried to shift the debate to Constitutional issue, but private correspondence indicates that black disenfranchisement was still the true concern. For instance, Mississippi Senator Theodore Bilbo declared, "If the poll tax bill passes, the next step will be an effort to remove the registration qualification, the educational qualification of Negroes. If that is done we will have no way of preventing the Negroes from voting."[8] This fear explains why even Southern Senators from states that had abolished the poll tax still opposed the bill; they did not want to set a precedent that the federal government could interfere in state elections.

President Harry S. Truman established the President's Committee on Civil Rights, which among other issues investigated the poll tax. Considering that opposition to federal poll tax regulation in 1948 was claimed as based on the Constitution, the Committee noted that a constitutional amendment might be the best way to proceed. Still, little occurred during the 1950s. Members of the anti-poll tax movement laid low during the anti-Communist frenzy of the period; some of the main proponents of poll tax abolition, such as Joseph Gelders and Vito Marcantonio, had been committed Marxists.[9]

President John F. Kennedy returned to this issue. His administration urged Congress to adopt and send such an amendment to the states for ratification. He considered the constitutional amendment the best way to avoid a filibuster, as the claim that federal abolition of the poll tax was unconstitutional would be moot. Still, some liberals opposed Kennedy's action, feeling that an amendment would be too slow compared to legislation.[10]Spessard Holland, a conservative Democrat from Florida, introduced the amendment to the Senate. Holland opposed most civil rights legislation during his career,[11] and Kennedy's gaining of his support helped splinter monolithic Southern opposition to the Amendment. Ratification of the amendment was relatively quick, taking slightly more than a year; it was rapidly ratified by state legislatures across the country from August 1962 to January 1964.

President Lyndon B. Johnson called the amendment a "triumph of liberty over restriction" and "a verification of people's rights."[12] States that maintained the poll tax were more reserved. Mississippi's Attorney General, Joe Patterson, complained about the complexity of two sets of voters - those who paid their poll tax and could vote in all elections, and those who had not and could only vote in federal elections.[12] Additionally, non-payers of the poll tax could still be deterred by requirements that they register far in advance of the election and retain records of such registration.[13] States such as Alabama also exercised discrimination in the application of literacy tests.

Ratified amendment, 196264

Ratified amendment post-enactment, 1977, 1989, 2002, 2009

Rejected amendment

Didn't ratify amendment

Congress proposed the Twenty-fourth Amendment on August 27, 1962.[14][15] The amendment was submitted to the states on September 24, 1962, after it passed with the requisite two-thirds majorities in the House and Senate.[12] The following states ratified the amendment:

Ratification was completed on January 23, 1964. The Georgia legislature did make a last-second attempt to be the 38th state to ratify. This was a surprise as "no Southern help could be expected"[13] for the amendment. The Georgia Senate quickly and unanimously passed it, but the House did not act in time.[12] Georgia's ratification was apparently dropped after South Dakota's ratification.

The amendment was subsequently ratified by the following states:

The amendment was specifically rejected by the following state:

The following states have not ratified the amendment:

Arkansas effectively repealed its poll tax for all elections with Amendment 51 to the Arkansas Constitution at the November 1964 general election, several months after this amendment was ratified. The poll-tax language was not completely stricken from its Constitution until Amendment 85 in 2008.[16] Of the five states originally affected by this amendment, Arkansas was the only one to repeal its poll tax; the other four retained their taxes until they were struck down in 1966 by the US Supreme Court decision in Harper v. Virginia Board of Elections (1966), which ruled poll taxes unconstitutional even for state elections. Federal district courts in Alabama and Texas, respectively, struck down their poll taxes less than two months before the Harper ruling was issued.

The state of Virginia accommodated the amendment by providing an "escape clause" to the poll tax. In lieu of paying the poll tax, a prospective voter could file paperwork to gain a certificate establishing a place of residence in Virginia. The papers would have to be filed six months in advance of voting and the voter had to provide a copy of certificate at the time of voting. This measure was expected to decrease the number of legal voters.[17] In the 1965 Supreme Court decision Harman v. Forssenius, the Court unanimously found such measures unconstitutional. It declared that for federal elections, "the poll tax is abolished absolutely as a prerequisite to voting, and no equivalent or milder substitute may be imposed."[18]

While not directly related to the Twenty-fourth Amendment, the Supreme Court case Harper v. Virginia Board of Elections (1966) ruled that the poll tax was unconstitutional at every level, not just for federal elections. The Harper decision relied upon the Equal Protection Clause of the Fourteenth Amendment, rather than the Twenty-Fourth Amendment. As such, issues related to whether burdens on voting are equivalent to poll taxes in discriminatory effect have usually been litigated on Equal Protection grounds since.

See the article here:
Twenty-fourth Amendment to the United States Constitution ...

ABA Journal's Blawg 100 (2015)

by John Wesley Hall Criminal Defense Lawyer and Search and seizure law consultant Little Rock, Arkansas Contact / The Book http://www.johnwesleyhall.com

2003-16, online since Feb. 24, 2003 real non-robot URL hits since 2010; approx. 18k posts since 2003

~~~~~~~~~~~~~~~~~~~~~~~~~~

Fourth Amendment cases, citations, and links

Latest Slip Opinions: U.S. Supreme Court (Home) Federal Appellate Courts Opinions First Circuit Second Circuit Third Circuit Fourth Circuit Fifth Circuit Sixth Circuit Seventh Circuit Eighth Circuit Ninth Circuit Tenth Circuit Eleventh Circuit D.C. Circuit Federal Circuit Foreign Intell.Surv.Ct. FDsys, many district courts, other federal courts, other Military Courts: C.A.A.F., Army, AF, N-M, CG State courts (and some USDC opinions)

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Research Links: Supreme Court: SCOTUSBlog S. Ct. Docket Solicitor General's site SCOTUSreport Briefs online (but no amicus briefs) Curiae (Yale Law) Oyez Project (NWU) "On the Docket"Medill S.Ct. Monitor: Law.com S.Ct. Com't'ry: Law.com

General (many free): LexisWeb Google Scholar | Google LexisOne Legal Website Directory Crimelynx Lexis.com $ Lexis.com (criminal law/ 4th Amd) $ Findlaw.com Findlaw.com (4th Amd) Westlaw.com $ F.R.Crim.P. 41 http://www.fd.org FBI Domestic Investigations and Operations Guide (2008) (pdf) DEA Agents Manual (2002) (download) DOJ Computer Search Manual (2009) (pdf) Stringrays (ACLU No. Cal.) (pdf)

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) --Federal Laws Relating to Cybersecurity: Discussion of Proposed Revisions (2012) ACLU on privacy Privacy Foundation Electronic Frontier Foundation NACDLs Domestic Drone Information Center Electronic Privacy Information Center Criminal Appeal (post-conviction) (9th Cir.) Section 1983 Blog

"If it was easy, everybody would be doing it. It isn't, and they don't." Me

I still learn something new every day. Pete Townshend, The Who 50th Anniversary Tour, "The Who Live at Hyde Park" (Showtime 2015)

"I can't talk about my singing. I'm inside it. How can you describe something you're inside of?" Janis Joplin

"Love work; hate mastery over others; and avoid intimacy with the government." Shemaya, in the Thalmud

"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 notto put it mildlyrun 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 Governments 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)

Libertythe freedom from unwarranted intrusion by governmentis 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 meand by that time there was nobody left to speak up." Martin Niemller (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." Johnson v. United States, 333 U.S. 10, 13-14 (1948)

Read more here:
CA2: Crossing threshold to arrest without warrant violates ...

ABA Journal's Blawg 100 (2015)

by John Wesley Hall Criminal Defense Lawyer and Search and seizure law consultant Little Rock, Arkansas Contact / The Book http://www.johnwesleyhall.com

2003-16, online since Feb. 24, 2003 real non-robot URL hits since 2010; approx. 18k posts since 2003

~~~~~~~~~~~~~~~~~~~~~~~~~~

Fourth Amendment cases, citations, and links

Latest Slip Opinions: U.S. Supreme Court (Home) Federal Appellate Courts Opinions First Circuit Second Circuit Third Circuit Fourth Circuit Fifth Circuit Sixth Circuit Seventh Circuit Eighth Circuit Ninth Circuit Tenth Circuit Eleventh Circuit D.C. Circuit Federal Circuit Foreign Intell.Surv.Ct. FDsys, many district courts, other federal courts, other Military Courts: C.A.A.F., Army, AF, N-M, CG State courts (and some USDC opinions)

Google Scholar Advanced Google Scholar Google search tips LexisWeb LII State Appellate Courts LexisONE free caselaw Findlaw Free Opinions To search Search and Seizure on Lexis.com $

Research Links: Supreme Court: SCOTUSBlog S. Ct. Docket Solicitor General's site SCOTUSreport Briefs online (but no amicus briefs) Curiae (Yale Law) Oyez Project (NWU) "On the Docket"Medill S.Ct. Monitor: Law.com S.Ct. Com't'ry: Law.com

General (many free): LexisWeb Google Scholar | Google LexisOne Legal Website Directory Crimelynx Lexis.com $ Lexis.com (criminal law/ 4th Amd) $ Findlaw.com Findlaw.com (4th Amd) Westlaw.com $ F.R.Crim.P. 41 http://www.fd.org FBI Domestic Investigations and Operations Guide (2008) (pdf) DEA Agents Manual (2002) (download) DOJ Computer Search Manual (2009) (pdf) Stringrays (ACLU No. Cal.) (pdf)

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) --Federal Laws Relating to Cybersecurity: Discussion of Proposed Revisions (2012) ACLU on privacy Privacy Foundation Electronic Frontier Foundation NACDLs Domestic Drone Information Center Electronic Privacy Information Center Criminal Appeal (post-conviction) (9th Cir.) Section 1983 Blog

"If it was easy, everybody would be doing it. It isn't, and they don't." Me

I still learn something new every day. Pete Townshend, The Who 50th Anniversary Tour, "The Who Live at Hyde Park" (Showtime 2015)

"I can't talk about my singing. I'm inside it. How can you describe something you're inside of?" Janis Joplin

"Love work; hate mastery over others; and avoid intimacy with the government." Shemaya, in the Thalmud

"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 notto put it mildlyrun 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 Governments 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)

Libertythe freedom from unwarranted intrusion by governmentis 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 meand by that time there was nobody left to speak up." Martin Niemller (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." Johnson v. United States, 333 U.S. 10, 13-14 (1948)

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N.D.Ill.: Withheld video of CPD shooting revealed during ...