The judge who signed the search warrant is not automatically disqualified from hearing the motion to suppress by the Canons of Judicial Ethics and the “appearance of impropriety” standard. There might be cases where the facts would support it, but there is no per se rule and this case doesn’t have the facts. The federal and state courts are almost uniform on this. Minks v. Commonwealth, 2014 Ky. LEXIS 166 (April 17, 2014):
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Whether the target of a search is a medical marijuana patient is an affirmative defense at trial. Therefore, it doesn’t factor into the probable cause determination. State v. Reis, 2014 Wash. App. LEXIS 759 (March 31, 2014).
Defendant was arrested and in handcuffs. The search of her purse was valid before handing it back to her for the safety of the officers. State v. Mayberry, 2014 Tenn. Crim. App. LEXIS 358 (April 16, 2014).*
Defendant’s stop was without probable cause to believe he committed any traffic offense, and the subsequent seizure of cash was invalid. United States v. $45,000.00 in United States Currency, 2014 U.S. App. LEXIS 7057 (8th Cir. April 16, 2014).*
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The search of the juvenile’s school locker was validly based on an unverified report that he shot somebody on a school bus the day before. It was reasonable for the school officials to act on that information. A sawed-off shotgun was found in his locker. In re J.D., 2014 Cal. App. LEXIS 338 (1st Dist. April 15, 2014):
Recent events have demonstrated the increased concern school officials must have in the daily operation of public schools. Sites such as Columbine, Sandy Hook Elementary, and Virginia Tech have been discussed in our national media not because of their educational achievements, but because of the acute degree of violence visited on these and other campuses—hostility often predicated on killings with firearms. During the 2009–2010 school year, 33 students, staff, and others died in a school-associated violent event. In 2009, 8 percent of students in grades nine through twelve reported being threatened or injured with a weapon on school property at least one time. According to the National Center for Injury Prevention and Control, a division of the Center for Disease Control (CDC), in 2010, there were 828,000 nonfatal victimizations at school among students 12 through 18 years of age. In 2011, 5.9 percent of the students in grades nine through 12 did not attend school within 30 days of the CDC survey because they felt the school, or their way to or from school, was unsafe. Also, 7.4 percent of the same group reported being threatened or injured with a weapon on school property one or more times in the past 12 months before the survey. We must be cognizant of this alarming reality as we approach our role in assessing appropriate responses by school administrators to campus safety issues.
. . .
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Airport TSA “screenings” are “searches” within the Fourth Amendment and the FTCA because they can search people and their belongings and then seize things. Here, however, plaintiff doesn’t state a claim. Armato v. Jane Doe 1, 2012 U.S. Dist. LEXIS 190080 (D. Ariz. May 15, 2012):
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eff.org: In the One-sided Foreign Intelligence Surveillance Court, It’s Hard to Get The Whole Story by Nadia Kayyali and Kurt Opsahl:
While most courts in the United States are adversarial—each party presents its side and a jury, or occasionally a judge, makes a decision—in the Foreign Intelligence Surveillance Court (FISC), only the government presents its case to a judge. While typically two opposing sides work under public review to make sure all the facts are brought to light, in the FISC the system relies on a heightened duty of candor for the government. As is illustrated all too well by recent developments in our First Unitarian v. NSA case, this one-sided court system is fundamentally unfair.
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Reuters: Cell phone search case is easy call for Supreme Court by Jack Shafer:
(The opinions expressed here are those of the author, a columnist for Reuters.)
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Motherboard: Every Drone Mission the FBI Admits to Flying by Shawn Musgrave:
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The government brings a second search warrant application for an email account, and it is rejected again as overbroad. The concerns of the prior opinion are not addressed. Also, the government’s contention that copying emails is not a “seizure” is rejected out of hand. Follow Tamura: it’s now in Rule 41. In re Search of Information Associated with [Redacted]@mac.com, 2014 U.S. Dist. LEXIS 52053 (D.D.C. April 7, 2014):
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The trial court properly denied defendant a self defense instruction for shooting a police officer during what he claimed was an illegal entry into his home where he also denied even shooting the officer. People v. Pandolfi, 2014 IL App (1st) 113783, 2014 Ill. App. LEXIS 244 (April 14, 2014) [shown to be unpublished since posted here].
Plaintiff Louisiana prison inmate stated a claim for unjustified strip and body cavity searches, and dismissal of his case is reversed. Gipson v. Wilkinson, 2014 U.S. App. LEXIS 7005 (5th Cir. April 15, 2014).*
The search of this truck was by consent. The only issue on appeal is whether the state presented sufficient evidence to connect the passenger to drugs hidden in compartments on the truck when there was one fingerprint in the compartments that matched neither. There wasn’t in this case, and the conviction is reversed and dismissed. State v. Velazquez-Perez, 2014 N.C. App. LEXIS 365 (April 15, 2014).*
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This case started as an apparent hostage situation where a woman text messaged her boyfriend that she was being held hostage in defendant’s house. He called the police and showed the text messages. They tried to figure out what was going on but were getting no response. The SWAT team arrived and spotlighted the house. The woman came out in tears. Her story was recorded on a dash cam. A few minutes later the defendant came out and locked the door behind him. The police took his keys and couldn’t enter to do a protective sweep. The SWAT team forced their way in through the back door. Inside they found guns and drugs during the protective sweep. A search warrant was issued for a search of the house. It seems that the hostage story was concocted to cover with the boyfriend about her staying with defendant and having sex. They’d known each other 25 years. Defendant was convicted under 18 U.S.C. § 922(g) for being a drug user in possession of a firearm, and he was sentenced to 39 months. Still, under what the police knew at the scene, the protective sweep was valid. United States v. Henderson, 2014 U.S. App. LEXIS 7018 (7th Cir. April 15, 2014).
Note: Doesn’t it seem a little heavy handed for the feds to prosecute this poor schmuck? He’d probably get probation in state court, if the prosecutor would even exercise the discretion to indict him. But the feds sure would.
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Under California law a doctor has standing in the medical records of patients [same with lawyers and client files]. The Medical Board did a controlled substances prescription database search to see what the doctor had been prescribing to see if he was overprescribing controlled substances. The search did not violate any right of privacy or the patients’ reasonable expectation of privacy. Medical Bd. of Cal. v. Chiarottino, 2014 Cal. App. LEXIS 333 (1st Dist. April 15, 2014):
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There was a dog sniff at defendant’s house, and Jardines would apply, except that there was plenty of probable cause here without the dog sniff. Therefore, excluding that fact from the case, there was still probable cause for the search warrant. In Jardines, the dog sniff was the probable cause. Jones v. United States, 2014 U.S. Dist. LEXIS 51544 (W.D. Tex. April 9, 2014).
Smell of meth lab and partially open door justified emergency entry. The officer was not constitutionally required to attempt to call the defendant before entering. State v. Demarco, 2004 Conn. LEXIS 592 (April 22, 2014) [the date is wrong on Lexis; look at the official opinion].
2255 petitioner’s search and seizure claim was litigated and lost in the district court before conviction, so it can’t be shown here to be a ground for post-conviction relief. United States v. Parker, 2014 U.S. Dist. LEXIS 51501 (E.D. Pa. April 11, 2014).*
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Without a case in point, warrantless seizure of a text message from a cell phone which was Overt Act 8 in the indictment was not unreasonable under the good faith exception. Defendant relies on Wurie, which is from the First Circuit and this case is in the Sixth. United States v. Gaddie, 2014 U.S. Dist. LEXIS 51945 (M.D. Tenn. March 27, 2014):
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WaPo: Volokh: Choosing between ‘never search’ and ‘sometimes search’ in the cell phone search cases by Orin Kerr:
This is the hardest issue that the Supreme Court must decide in trying to determine how the Fourth Amendment applies to search of a cell phone incident to arrest. Let’s take a look at four focal points that might influence the decision.
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Because there was clear precedent that GPS monitoring before Jones was valid, and at least by the Davis good faith exception, the GPS here was valid, too. During the pendency of this appeal, other cases so held. United States v. Ransfer, 2014 U.S. App. LEXIS 6950 (11th Cir. April 14, 2014).
Plaintiff didn’t show that defendants actually violated his Fourth Amendment rights in his 2007 arrest. Langston v. Shiaishi, 2014 U.S. App. LEXIS 6911 (9th Cir. April 14, 2014).*
Defense counsel’s withdrawal of a nonmeritorious motion to suppress because of consent was not IAC.
United States v. Benson, 2014 U.S. Dist. LEXIS 51832 (D. Minn. April 15, 2014).*
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The government’s motion to compel fingerprinting of a person in lawful custody on an indictment is granted. There is no Fifth or Fourth Amendment right involved. United States v. Adams, 2014 U.S. Dist. LEXIS 51735 (E.D. Mich. April 15, 2014):
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by John Wesley Hall
Criminal Defense Lawyer and
Fourth Amendment consultant
Little Rock, Arkansas
Contact / The Book
Search and seizure law consulting
www.johnwesleyhall.com
@JohnWesleyHall
online since Feb. 24, 2003
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"If it was easy, everybody would be doing it. It isn't, and they don't."
—Me
"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."
—Malcolm Forbes
"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)
