- D.Ore.: Rental car company can’t be a third-party consenter just because def was unauthorized driver
- D.V.I.: Inevitable discovery fails here because the govt doesn’t show it was trying to get a SW
- NYTimes: N.Y.P.D. Detectives Gave a Boy, 12, a Soda. He Landed in a DNA Database.
- Cal.: Probation search condition of electronic devices not related to underlying offense and quashed
- S.D.N.Y.: Seizure of 21 privileged documents out of 1.3M wasn’t a 4A or privilege violation
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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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Category Archives: Overseizure
The government seized 1.3M documents, and 21 apparently were privileged. This doesn’t show that the government was willful disregarding the warrant or the need to protect privileged materials. His iPhone and laptop were properly seized by plain view then subjected … Continue reading
The officer who had defendant’s cell phone asked her to unlock it. She entered the passcode without sharing it or him seeing her do it. It wasn’t a communicative act. It’s like providing a key. Her motion to suppress the … Continue reading
S.D.W.Va.: Computer SW for drugs led to healthcare fraud evidence; second SW needed; exclusionary rule should apply to deter
The government had a search warrant of ESI for drugs. When the search warrant was executed, they found evidence of healthcare billing fraud. A second search warrant was required, citing the government’s own search manual [noted and linked on the … Continue reading
IA: SW for premises includes whole house, and bedroom of a visitor with a separate REP is still subject to search
Defendant was staying at the house of another when a search warrant for the premises was executed. He argued that his particular bedroom wasn’t subject to search under the warrant because he had a separate expectation of privacy in the … Continue reading
CA6: Medical clinic wasn’t “permeated with fraud” justifying an “all records” seizure, but SW was particular enough for a substantial seizure
The district court held that the defendant’s medical clinic was “permeated with fraud” justifying an “all records” seizure. The court of appeals disagrees. There was a fair amount of potential fraud, but it wasn’t obvious. Still, the warrant had particularity … Continue reading
Defendants were charged in a dietary supplement mislabeling conspiracy. On the claim of overseizure, the warrant specified “angeline” but the court concludes anything related to it was seizable as well without violating particularity. Two defendants were given standing to challenge … Continue reading
CA4: Seizure of Nazi materials in a SW for an ISIL suspect was reasonable because both are defined as terrorist organizations
Defendant was alleged to be connected to ISIL, and, in a terrorism investigation, the government executed a search warrant at his home. Seizure of Nazi materials wasn’t outside the scope of the search warrant: “a reasonable officer would be able … Continue reading
S.D.N.Y.: Overseizure from iCloud account wasn’t so flagrant it required suppression; govt agreed in advance to exclude the overseized
The government’s overseizure from defendant’s iCloud account wasn’t so flagrant or egregious to warrant suppression. The government agreed up-front to exclude the obvious, and that’s a sufficient remedy. United States v. Pinto-Thomaz, 2019 U.S. Dist. LEXIS 26262 (S.D. N.Y. Feb. … Continue reading
S.D.N.Y.: In a document search, a slight overseizure that the govt declines to use avoids extraordinary remedy of suppression
“In sum, the affidavits set forth detailed information concerning the evidence of insider trading obtained and the connection between the devices and accounts concerned and probable additional evidence. The warrants were particularized and their breadth tied to the evidence relevant … Continue reading
IN: Seizure of only cash under SW for drugs and cash from drug sales was unreasonable and without PC
When police had a search warrant for a package that included cash for drug purposes in the particular description, the seizure of only cash wasn’t justified. Nothing showed that the money was related to crime. Hodges v. State, 2018 Ind. … Continue reading
S.D.Fla.: Govt oversearched and violated A-C privilege; but it wasn’t really bad enough to warrant sanctions, and govt not using it
The government reviewed attorney-client materials and failed to uphold the standards of DOJ to protect them from review by investigators. Nevertheless, it doesn’t rise high enough to require dismissal of the indictment. The government concedes that it won’t use some … Continue reading