- CA5: Ptf’s 4A claims were Heck barred because they would interfere with the state prosecution.
- IN: Officer at front door to do knock-and-talk could look through gap in blinds
- S.D.N.Y.: AirBnB can’t block all discovery of customer’s third-party records
- E.D.N.Y.: Def did nothing to show his standing in the car or the things seized from it
- NY4: State didn’t show that CI actually existed; reversed
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"If it was easy, everybody would be doing it. It isn't, and they don't."
“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!”"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."
---Pepé Le Pew
—Johnson v. United States, 333 U.S. 10, 13-14 (1948)
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Officer who was at front of house to do a knock and talk did not conduct an illegal search when he heard noise inside and looked through a gap in the blinds. Jardines is distinguished, and the court used the same Jardines analogy: “Instead, Officer Shourds did what a girl scout or a trick of treater who approached the door in the same manner would — briefly observe the activity inside the apartment clearly visible from the front door window. The record does not suggest he lingered or attempted to peer through a window not located on the door, actions we explicitly found to violate the Fourth Amendment in J.K. v. State, 8 N.E.3d 222, 232 (Ind. Ct. App. 2014).” Taylor v. State, 2019 Ind. App. LEXIS 133 (Mar. 22, 2019):
In AirBnB’s case against NYC, the city gets discovery of some of AirBnB’s customer records because it is third-party information subject to disclosure at least to determine the extent of an expectation of privacy. AirBnB, Inc. v. City of New York, 2019 U.S. Dist. LEXIS 48245 (S.D. N.Y. Mar. 23, 2019):
Reasonable suspicion supported the stop for no license plate light. Then, defendant lacks a reasonable expectation of privacy in the car or its contents. “However, neither Defendant’s affidavit nor the evidence adduced at the hearing establish that Defendant had any ownership or possessory interest in the vehicle, the potato chip bag, or the firearm. Without any such evidence, the Court cannot find that he had a subjective expectation of privacy.” United States v. Legree, 2019 U.S. Dist. LEXIS 48209 (E.D. N.Y. Mar. 23, 2019).*
There was reasonable suspicion for the stop and detention, and then probable cause developed to conduct an automobile exception search of the car. United States v. Somerville, 2019 U.S. Dist. LEXIS 47485 (W.D. Pa. Mar. 22, 2019).*
The state didn’t make an sufficient showing required by NY law that the CI actually existed. The motion to suppress should have been granted. People v. Givans, 2019 NY Slip Op 02220, 2019 N.Y. App. Div. LEXIS 2237 (4th Dept. Mar. 22, 2019).*
In a Medicare fraud case, the affidavit was detailed and the information wasn’t stale because the operation was ongoing. United States v. Douglas, 2019 U.S. Dist. LEXIS 47801 (E.D. Mich. Mar. 22, 2019).*
The search warrant for defendant’s cell phone did not lack particularity. State v. Roden, 296 Ore. App. 604 (Mar. 22, 2019).*
Defendant’s Franks challenge fails. The officer’s assertion of fact was a reasonable inference based on what he saw and wasn’t false. United States v. Cruz-Arroyo, 2019 U.S. Dist. LEXIS 47172 (D. P.R. Mar. 19, 2019).*
Defendant’s Franks challenge fails for not “identify[ing] for the Court any omitted facts that were known by Officer Riley at the time he applied for the search warrant yet were not included in the search warrant affidavit.” United States v. Turner, 2019 U.S. Dist. LEXIS 46533 (E.D. Mich. Mar. 21, 2019).*
“Here, probable cause supported the searches at issue regardless of whether the Affiant falsely stated that the legal opinions at issue created an ‘illegal tax scheme.’ Lebowitz, 676 F.3d at 1010. The detailed 32-page affidavit in support of the warrant provided sufficient evidence for the issuing magistrate to conclude that Appellants may have devised the BPP scheme precisely to effect the submission of materially false tax returns.” United States v. Donaldson, 2019 U.S. App. LEXIS 8684 (11th Cir. Mar. 22, 2019).*
The Sacramento Bee and defendant seek unsealing of search warrant materials in an extradition matter, but the motion is denied. Extradition is different than prosecution. If a criminal prosecution will result in the United States, and it still could, the case is still preindictment and that’s another ground to deny. In re Ameen, 2019 U.S. Dist. LEXIS 47391 (E.D. Cal. Mar. 21, 2019).
“Further pertinent to the case and facts at hand, the Fourth Circuit has stated that a ‘motorist stopped by police is obliged to endure ‘certain negligibly burdensome precautions’ that may not relate directly to the reason for the traffic stop, such as checking whether the driver has a criminal record or outstanding warrants.’ United States v. Palmer, 820 F.3d 640, 651 (4th Cir. 2016) (quoting Rodriguez, 135 S. Ct. at 1616).” United States v. Boley, 2019 U.S. Dist. LEXIS 48120 (N.D. W.Va. Feb. 15, 2019).*
404(b) evidence obtained in violation of the Fourth Amendment is subject to suppression. United States v. Hill, 60 F.3d 672, 677 (10th Cir. 1995). Here, however, it was harmless beyond a reasonable doubt.
United States v. Dalton, 2019 U.S. App. LEXIS 8495 (10th Cir. Mar. 21, 2019).
Defendant’s 2255 on his search claim fails. The daytime warrant search started before night and continued passed the final time for a daytime search, and Ohio already held that this was not grounds for suppression. Smith v. United States, 2019 U.S. Dist. LEXIS 47197 (N.D. Ohio Mar. 21, 2019).*
Defendant’s providing a false name was enough for the officer to extend the stop with reasonable suspicion. United States v. Boley, 2019 U.S. Dist. LEXIS 46935 (N.D. Va. Mar. 21, 2019).
Revealing the plaintiff’s identity as a CI in a search warrant affidavit resulted in his being shot. That stated a claim for relief under at least state law, and maybe § 1983 too [but what about qualified immunity]. Corgan v. Keema, 2019 U.S. App. LEXIS 8569 (9th Cir. Mar. 22, 2019).*
Not a search issue but worth noting: Defendant’s home surveillance system caught images of several drug deals and a drug cook. The case doesn’t, however, describe the probable cause for searching the DVR. State v. Groce, 2019-Ohio-1007, 2019 Ohio App. LEXIS 1062 (10th Dist. Mar. 22, 2019).*
“In this case, Special Agent Dosch, a 22-year veteran of the DEA, submitted a 51-page and 72-page detailed affidavit in support of the search warrants which were based on surveillance, information from confidential informants, financial records, evidence including drug contraband and large amounts of currency obtained through other seizures, drug ledgers, text messages, and other evidence. The agents obtained search warrants, which did not contain false information, were not ‘bare bones,’ and were not so facially deficient as to render the agents’ reliance upon them to be unreasonable. … Therefore, even if the search warrants were not sufficiently supported by probable cause, the court applies the good-faith exception to the exclusionary rule.” United States v. Attisha, 2019 U.S. Dist. LEXIS 46798 (E.D. Mich. Mar. 21, 2019).*