- CA3: Finding suspect near bank that was just robbed generally matching description but with short sleeves in winter was RS
- CA9: UA in prison is reasonable
- Boston CBS: Justice Department: Springfield Police Narcotics Bureau Regularly Used Excessive Force
- Gizmodo: Law Enforcement Is Buying Its Way Into Our Breaches
- MT: Field test of seized drugs is a reasonable search
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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: Suppression hearings
AZ: Ex parte order in 2013 for CSLI showed PC and was constitutionally sufficient and it would be served in NJ
An ex parte court order for CSLI five years before Carpenter, and probable cause was shown. It was the functional equivalent of a search warrant. It also could be served on T-Mobile in New Jersey. State v. Conner, 2020 Ariz. … Continue reading
OH10: Lack of findings of fact and conclusions of law on grant of suppression motion requires remand to make them
The trial court’s grant of suppression is reversed and remanded because of its inadequate findings of fact and conclusions of law for appellate review. State v. Peeks, 2020-Ohio-889, 2020 Ohio App. LEXIS 812 (10th Dist. Mar. 10, 2020). Defendant officers … Continue reading
Defendant doesn’t get to subpoena the issuing magistrates for the search warrant because their mental impressions are irrelevant and whether a telephonic warrant was avoidable by essentially shopping for a different judge. Nevertheless, the issue is held in abeyance since … Continue reading
OH2: Hearsay is admissible in a suppression hearing, and the trial court erred in sustaining the state’s objection to hearsay, but it was harmless on the totality
The state objected to hearsay to a defense question at the suppression hearing, but hearsay is admissible in suppression hearings under Rule 104(a). Here, however, it was harmless error. The lack of prejudice thus results in there being no ineffective … Continue reading
Law.com: Analysis: Reopening Suppression Hearings: The Trilogy Is Complete (“In his Criminal Law and Procedure column, Barry Kamins discusses a recent decision, ‘People v. Cook’, which is the last of a trilogy of decisions that began over 40 years ago, … Continue reading
Defendant wasn’t prejudiced by not calling his codefendant wife at the suppression hearing. Her declaration was already before the court, and nothing more could be added. What witnesses to call, even in a suppression hearing, is a Strickland strategic decision. … Continue reading
Defendant’s furtive movements while driving and nervousness after the stop justified extending the stop for fear there might be a weapon. United States v. Miller, 2019 U.S. Dist. LEXIS 224424 (E.D. Mo. Dec. 4, 2019).* The odor of alcohol, fumbling … Continue reading
The defendant’s arrest on this thin claim from an unproven and unreliable CI was without probable cause, and the search of his person is suppressed. The search warrant was also issued without probable cause, but the part of the hearing … Continue reading
Brady material doesn’t have to be disclosed for suppression hearings. [How does this fit with the ethical obligation to not present false evidence? See Model Rules 3.3 & 3.4. Brady material might not make a difference in suppression hearing; then, … Continue reading
The “plain smell” doctrine is longstanding, derives from plain view, and this court declines to resubmit the case for en banc review to reconsider it in the context of smell of marijuana in the car extending to the person in … Continue reading
TN: Failure to include the search warrant and affidavit in the record on appeal waives the search issue
Failure to include the search warrant and affidavit in the record on appeal waives the search issue. State v. Parks, 2019 Tenn. Crim. App. LEXIS 740 (Nov. 13, 2019). The officer gets qualified immunity because there was probable cause for … Continue reading
Defendant filed his motion to suppress in the blind because didn’t have access to the affidavit for the search warrant. It was denied without a hearing. Remanded: He gets to see it to try to controvert it. People v. Lambey, … Continue reading
Defense counsel wasn’t ineffective for not seeking a Franks hearing where there was no search warrant in the first place. Freeman v. United States, 2019 U.S. Dist. LEXIS 187171 (N.D. Ill. Oct. 29, 2019). Defendant’s general consent to search a … Continue reading
Hearsay is specifically admissible in suppression hearings [and issuing search warrants] under Rule 104(a). [After all, that’s how informant hearsay and collective knowledge work.] The court credits one officer as to what another told him in the probable cause for … Continue reading
The trial court didn’t make specific findings that defendant consented to the taking of blood for a BAC test. So, the appellate court looks to the record and finds that the evidence supports a finding of consent and denial of … Continue reading