- The Atlantic: What Are the Limits of Police Subterfuge?
- NYTImes: More Police Officers to Get Body Cameras
- BLT: Florida Federal Prosecutor Disciplined Over Warrant Application
- NY: Search incident to arrest requires an arrest
- PA: No IAC for not challenging entry into house to look for potential domestic violence victim
Fourth Amendment cases,
citations, and links
Latest Slip Opinions:
U.S. Supreme Court (Home)
Federal Appellate Courts Opinions
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)
Advanced Google Scholar
Google search tips
LII State Appellate Courts
LexisONE free caselaw
Findlaw Free Opinions
To search Search and Seizure on Lexis.com $
S. Ct. Docket
Solicitor General's site
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):
Google Scholar | Google
LexisOne Legal Website Directory
Lexis.com (criminal law/ 4th Amd) $
Findlaw.com (4th Amd)
FBI Domestic Investigations and Operations Guide (2008) (pdf)
DEA Agents Manual (2002) (download)
DOJ Computer Search Manual (2009) (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
Electronic Frontier Foundation
NACDL’s 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."
"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
"There is never enough time, unless you are serving it."
"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)
NYTImes: More Police Officers to Get Body Cameras by AP: Los Angeles and Houston next major cities
See WaPo: 7000 in LA by summer
BLT: Florida Federal Prosecutor Disciplined Over Warrant Application by Zoe Tillman:
A federal prosecutor in Florida was recently disciplined for providing false information to a U.S. magistrate judge’s secretary about a tracker warrant application.
There has to be an arrest that occurred or is going to occur to justify a search incident to arrest. Here, there was no intent to arrest until the search turned up something, so the search is invalid. People v. Reid, 2014 NY Slip Op 08759, 2014 N.Y. LEXIS 3372 (December 16, 2014):
Defense counsel was not ineffective for not challenging the police entry during a 911 anonymous domestic abuse call that there was screaming coming from inside defendant’s home. When they got there, there was silence, but the silence could have meant bad things besides there just not being anybody home. Police arrived within three minutes of the call, and all they could hear from inside was a ringing telephone. Most importantly, this was not an entry to search for crime – it was an entry to look for a person in need of assistance. Thus, the entry was lawful on the totality. Commonwealth v. Davido, 2014 Pa. LEXIS 3334 (December 15, 2014):
EFF: The Faulty Logic at the Heart of Microsoft Ireland Email Dispute by Hanni Fakhoury:
Microsoft has been battling with the federal government over the Department of Justice’s high profile attempt to get access to emails stored abroad in Ireland for the better part of 2014. The US government has claimed a US warrant is sufficient to get emails even when stored in another country, while Microsoft has resisted, arguing the US warrant power does not reach that far. The case has made business rivals into temporary allies and forced Ireland’s Minister for Foreign Affairs and Data Protection to ask the European Commission to formally support Microsoft.
Today we joined the Brennan Center for Justice, the ACLU, and The Constitution Project in a new amicus brief filed in the Second Circuit Court of Appeals supporting Microsoft. We warn the appeals court that two pieces of faulty logic in the lower court’s reasoning could have dangerous implications for digital privacy.
The New American: Well-respected Federal Judge Says Privacy Is Overrated by C. Mitchell Shaw:
The most cited legal scholar of the 20th century, Judge Richard Posner, says the NSA should have free range to “vacuum all the trillions of bits of information that are crawling through the electronic worldwide networks.” Furthermore, the only reason anyone would object, according to the judge, is because they are “just trying to conceal the disreputable parts of [their] conduct.”
The comments were made December 4 during a panel discussion on The Future of the Fourth Amendment at the Georgetown University Law Center’s conference, Cybercrime 2020: The Future of Online Crime and Investigations. Judge Posner went on to say, “Privacy interests should really have very little weight when you’re talking about national security,” because “the world is in an extremely turbulent state — very dangerous.”
Congress, as we have urged, should put in place a system that ensures the collection of accurate information to assess the problem and inform the debate over reform. But there is also, as Mr. Payton’s case demonstrates, a need for local police officials to treat these cases as priorities and with more transparency.
December 15th is Bill of Rights Day. The Fourth Amendment became law 224 years ago today.
In a bench trial, the defendant moved to suppress during the trial, and it was granted. Based on that, the state called no witnesses, and the trial court dismissed the case. Correct or not, the defendant can’t be retried because of double jeopardy, and the suppression question is really moot. Commonwealth v. Angus, 2014 Ky. App. LEXIS 185 (December 12, 2014).*
Weaving within one’s lane justified a stop on reasonable suspicion of DUI. Crumpton v. State, 2014 Tex. App. LEXIS 13226 (Tex. App. – Beaumont December 10, 2014).*
The Economist: America’s police on trial
The United States needs to overhaul its law-enforcement system
THE store camera tells a harrowing tale. John Crawford was standing in a Walmart in Ohio holding an air rifle—a toy he had picked off a shelf and was presumably planning to buy. He was pointing it at the floor while talking on his phone and browsing other goods. The children playing near him did not consider him a threat; nor did their mother, who was standing a few feet away. The police, responding to a 911 caller who said that a black man with a gun was threatening people, burst in and shot him dead. The children’s mother died of a heart attack in the ensuing panic. In September a grand jury declined to indict the officers who shot Mr Crawford.
NYTimes: NY Court Weighs Facebook’s Right to Challenge Search Warrants on Users’ Behalf
by James C. McKinley:
The thorny issue of Internet privacy was taken up by a New York State appeals court on Thursday, as judges seemed to be troubled that prosecutors in Manhattan had secretly searched the entire Facebook accounts of about 300 people who were not charged with a crime.
WaPo: N.Y. man sues FBI in bid to lift decade-old gag order by Ellen Nakashima:
A New York man who ran a small Internet company has sued the Justice Department to lift a 10-year-old gag order that accompanied a national security order served on him by the FBI for a customer’s records.
N.M.I.: When the prosecution claims an area is “high crime,” they have to prove it, and the officer’s mere assertions are not enough
When the prosecution claims an area is “high crime,” they have to prove it, and the officer’s mere assertions are not enough: “‘[j]ust as a man with a hammer sees every problem as a nail, so a man with a badge may see every corner of his beat as a high crime area.’” [quoting Kozinski] Here, the area was a beach at 3 am accessible by a one lane road. Commonwealth v. Crisostomo, 2014 MP 18, 2014 N. Mar. I. LEXIS 23 (December 12, 2014) (see this similar holding posted Friday):
When defendant was stopped and arrested for driving on a suspended DL, she refused consent to search her purse and wanted it given to the passenger for safekeeping. The police should have honored that request. The search of the purse produced methamphetamine. State v. Olendorff, 2014 Ore. App. LEXIS 1705 (December 10, 2014) (decision under Oregon law).
Defense counsel was not ineffective because he did, in fact, argue suppression motions that lost because the court had to rule against the defendant. Then admitting that the evidence found was his at trial wasn’t ineffective either. Bell v. United States, 2014 U.S. Dist. LEXIS 171705 (D. Md. December 8, 2014).*
There was a fact dispute on whether the police entered plaintiff’s home forcibly or by consent, and “The district court neglected its duty to credit Reeder’s version of events.” Reversed. Reeder v. City of Daytona Beach Police Chief, 2014 U.S. App. LEXIS 23298 (11th Cir. December 11, 2014).*