- CA11: Standing required for 41(g) motion to return of property
- Nothing online is anonymous; especially Zoom
- OH7: Defense counsel’s strategic choice to not challenge search was reasonable; he exploited it in cross of the officers
- NJLJ: Commentary: Use of Facial Recognition Following Capitol Siege Highlights Issues Seen in NJ Case
- E.D.Wash.: Where buy money was recorded, SW for it has to itemize it
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Fourth Amendment cases,
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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
NE: State failed in its burden of proof on inventory; the defense has no duty to clear up confusion in the proof
The state carried the burden, and it failed to prove that the inventory of defendant’s vehicle followed standardized procedure or was reasonable. The defense had no burden to clear up any evidentiary confusion because the state had the burden. State … Continue reading
DE: Actual presence of accused not required for suppression hearing and video appearance constitutional
A virtual suppression hearing that was a mixed question of law and fact didn’t require the actual presence of the accused under the Sixth Amendment’s confrontation clause, following United States v. Rosenschein, 2020 U.S. Dist. LEXIS 129889 (D.N.M. July 23, … Continue reading
OH6: When lack of PC for a SW is the issue, a suppression hearing isn’t required: it’s a question of law
When the defendant moves to suppress a search warrant claiming only a lack of probable cause, a hearing isn’t required. It’s then a mixed question of law and fact (mostly law). State v. Holt, 2020-Ohio-6649, 2020 Ohio App. LEXIS 4515 … Continue reading
“ Officers conducting a traffic stop may only conduct investigation unrelated to that traffic stop if they have independent constitutional justification for further inquiries. Neither line of inquiry here (first, whether defendant had drugs, and second whether she illegally possessed … Continue reading
OH11: Trial court’s order denying unsealing SW affidavit in post-conviction case wasn’t final and appealable
In a post-conviction case, the trial court’s order denying a motion to unseal a search warrant affidavit to facilitate his case was not a final appealable order. State v. Miller, 2020-Ohio-5383, 2020 Ohio App. LEXIS 4231 (11th Dist. Nov. 23, … Continue reading
Defendant’s claim of his statement being in violation of the Fourth Amendment isn’t preserved for appeal by lack of testimony of the officer involved. People v. Molina, 2020 NY Slip Op 06553. 2020 N.Y. App. Div. LEXIS 6651 (2d Dept. … Continue reading
It wasn’t ineffective assistance of counsel for defense counsel to decline to call Smith who was also arrested at the same time to corroborate his version of events of the search. Counsel believed that Smith wouldn’t withstand reasonable cross-examination because … Continue reading
GA: Entry into def’s house for pulling a gun on somebody elsewhere wasn’t in hot pursuit and suppressed
Officers entered defendant’s home for allegedly pulling a gun on his girlfriend at another house. They weren’t in hot pursuit, and the entry was unreasonable and is suppressed. The state’s inevitable discovery argument that a search warrant would have been … Continue reading
The district court erred in finding that the search warrant here was bare bones and that the good faith exception did not apply. There was a factual basis from which a reasonable officer would conclude there was probable cause. “But, … Continue reading
“As noted above, however, some of these alleged omissions and misstatements are simply not supported by the record. And, the omissions that are supported by the record were not material given the strength of the evidence supporting a finding of … Continue reading
The state conceded that hot pursuit didn’t justify their entry and relied on consent. “Nor could Boley’s act of letting the officers in be construed as consent. When the officer said she would be coming in, Boley responded with a … Continue reading
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