“Dismissal of the indictment and suppression of evidence are not appropriate remedial measures for a violation of Article 36 [of the Vienna Convention] in this case.” Sanchez-Llamas v. Oregon, 548 U.S. 331, 350 (2006). United States v. Castillo, 2018 U.S. App. LEXIS 19839 (3d Cir. July 18, 2018).
Government’s offer to not use any evidence from a search moots the need for a Franks hearing. United States v. James, 2018 U.S. Dist. LEXIS 121557 (D. Nev. July 20, 2018).*
On remand from United States v. Harris, 642 Fed. Appx. 713 (9th Cir. 2016), the district court had a hearing on application of inevitable discovery. “At the supplemental hearing, the district court made three findings in determining that the inevitable discovery doctrine applied, none of which we find to be clearly erroneous. First, the two officers responding to the reported domestic violence incident would have discovered Harris’s parole and searchable probation status by following routine police procedures applicable to such a situation. Second, the officers would then have inevitably developed probable cause that Harris resided at the apartment. Third, the officers would have inevitably searched the apartment after making the two previous determinations.” United States v. Harris, 2018 U.S. App. LEXIS 20249 (9th Cir. July 20, 2018).*
The Hill: Special master in Cohen case rejects more than a third of legal team’s privileged items by Aris Folley:
According to court documents filed Thursday, Special master Barbara Jones found that 1,452 out of the 4,085 items designated privileged by the lawyer’s legal team are not privileged. Jones “agrees with the plaintiff” that 2,633 of the documents or records meet attorney-client privilege standards.
Recode: Your phone is not secretly spying on your conversations. It doesn’t need to. By Eric Johnson
Northeastern University researchers Dave Choffnes and Christo Wilson (mostly) debunk the internet’s favorite conspiracy theory on the latest Too Embarrassed to Ask.
Defendant’s calls from the police station after he was arrested admitted the marijuana in this case was his. The calls were admitted at trial, defense counsel challenging authentication. Defendant pro se argued a Fourth Amendment violation, but that is defaulted as not within in the objection. Even if not, there was no reasonable expectation of privacy in the phone calls. Jackson v. State, 2018 Miss. App. LEXIS 329 (July 17, 2018).
The officer’s stop of defendant’s car was based on reasonable suspicion, and then probable cause developed. People v. Madera, 2018 NY Slip Op 05378, 2018 N.Y. App. Div. LEXIS 5292 (3d Dept. July 19, 2018).*
Petitioner filed two motions to return property: one under Rule 41(g) and another under 18 U.S.C. § 983. The former isn’t ripe; the later deserves a response. In re One 2018 Forest River Forester 2391 Rec. Vehicle “RV”, 2018 U.S. Dist. LEXIS 119984 (S.D. Ill. July 18, 2018).*
By posting to Facebook, even with a friends only setting, defendant waived his reasonable expectation of privacy in his postings. On the merits of the search warrant for Facebook, probable cause was shown. United States v. Westley, 2018 U.S. Dist. LEXIS 118571 (D. Conn. July 17, 2018),
Police getting defendant to walk to his apartment manager’s office about “a problem” was not a seizure. If a ruse had been used, maybe; but that’s not the case. Ramos v. State, 2018 Alas. App. LEXIS 136 (July 18, 2018) (memorandum).*
“The defendant’s valid waiver forecloses appellate review of the denial of that branch of his omnibus motion which was to suppress his statements made to law enforcement officials, the denial of his motion to controvert a search warrant and suppress the physical evidence recovered …, and his excessive sentence claim ….” People v. Rivera, 2018 NY Slip Op 05338, 2018 N.Y. App. Div. LEXIS 5223 (2d Dept. July 19, 2018).*
The Seventh Circuit held in dicta in 2014 that CSLI didn’t need a warrant. United States v. Thousand, 558 Fed. Appx. 666, 670 (7th Cir. 2014). The search here was two years before Carpenter. Davis good faith applies, and the exclusionary rule does not apply. United States v. Reyes, 2018 U.S. Dist. LEXIS 118808 (S.D. Ind. July 17, 2018).
Defendant was stopped because his windshield was tinted. When the officer got to the driver’s window, he could smell burnt marijuana. This led to a search of the person that produced drugs, and the motion to suppress is denied. United States v. Conway, 2018 U.S. Dist. LEXIS 118931 (E.D. Ky. July 17, 2018).*
Defendant crossed the border in July 2012, and his phone was seized and somewhat analyzed. On the eve of trial in July 2018, the government did a full search without a warrant. Defendant moves to suppress, and it’s granted. The second search six years later cannot be justified by the border search or any other exception. United States v. Gandy, 2018 U.S. Dist. LEXIS 118540 (S.D. Tex. July 17, 2018):
Continue reading
Trial court’s deciding to suppress based on an argument not made by defendant was error. Commonwealth v. Jones, 2018 PA Super 208, 2018 Pa. Super. LEXIS 815 (July 17, 2018).
Defendant argues in post-conviction proceedings against the trial court’s ruling on a motion to suppress. Then defendant pled to the charge. The claim was sort of described as an ineffective assistance of counsel claim, but not quite, at least as described. At any rate, defendant loses because defense counsel was well prepared and defendant pled. State v. Curtis, 2018-Ohio-2822, 2018 Ohio App. LEXIS 3041 (5th Dist. July 16, 2018).*
“Upon reviewing Agent Taylor’s affidavit, we find that it provided a clear nexus between appellant’s alleged drug trafficking and his hotel room, and thus contained sufficient evidence to support a probable cause finding justifying the issuance of the search warrant.” State v. Nelson, 2018-Ohio-2819, 2018 Ohio App. LEXIS 3039 (12th Dist. July 16, 2018).*
“A jury could reasonably find that the Kovacics suffered no actual damages from an unreasonable search of the home. See George v. City of Long Beach, 973 F.2d 706, 708-09 (9th Cir. 1992). Although Jared Kovacic was detained for 20 minutes, a jury could reasonably find that this brief deprivation of liberty does not amount to a per se actual injury, unlike the 100 days of incarceration that we deemed to be an actual injury in Hazle v. Crofoot, 727 F.3d 983, 991-92 (9th Cir. 2013).” Kovacic v. County of L.A., 2018 U.S. App. LEXIS 19692 (9th Cir. July 17, 2018).
Defendant’s objections to the USMJ’s R&R denying the suppression motion are preserved, and he doesn’t get another hearing. United States v. Lewis, 2018 U.S. Dist. LEXIS 117588 (N.D. Ind. July 16, 2018).*
The issue of inevitable discovery was treated as an aside by the government, although it bore the burden of proof on it. It seeks the use of hearsay on inevitable discovery that was hard to credit considering the posture of the case. United States v. Ansah, 2018 U.S. Dist. LEXIS 117417 (N.D. Ga. July 16, 2018):
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by John Wesley Hall
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Contact: forhall @ aol.com / The Book
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online since Feb. 24, 2003
WebPage Visits: real non-robot hits since 2010; approx. 25k posts since 2003
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"If it was easy, everybody would be doing it. It isn't, and they don't."
—Me
“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
"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
