- Reason: ‘Everything Has Been Criminalized,’ Says Neil Gorsuch as He Pushes for Stronger Fourth Amendment Protections
- PA: With MMJ, smell of MJ alone isn’t PC for search of a car; more required
- GA: Contraband in plain view on def’s property didn’t justify warrantless entry to seize it
- W.D.Wash.: iCloud SW temporal limit was impractical
- D.Nev.: “Seeming[ly] strategic activation and deactivation of the body camera” leads to finding of no consent
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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: Prison and jail searches
A probationer wearing a GPS ankle monitor has no reasonable expectation of privacy in the information that linked him to an armed robbery while he was on probation. State in the interest of T.B., 2021 La. App. LEXIS 188 (La. … Continue reading
It was a reasonable inference that the owner of a vehicle with a suspended license was driving when the vehicle was seen because the officer’s experience [and commonsense by now] shows that persons with suspended licenses continue to drive. That … Continue reading
Surveying cases from other jurisdictions, the South Dakota Supreme Court decides that inverse condemnation claims do not lie under the state’s eminent domain provision ( “[p]rivate property shall not be taken for public use, or damaged, without just compensation[.]”) for damage to … Continue reading
A state court’s findings of lack of probable cause to proceed with some charges against the defendant isn’t binding on federal courts. “Based on the evidence presented at the hearing, including the 911 calls, bodycam footage, and the credible and … Continue reading
Defense counsel wasn’t ineffective for not challenging recording jail calls [actually stated as a 2254(d) failure]. Garcia v. Sec’y, 2021 U.S. App. LEXIS 314 (11th Cir. Jan. 6, 2021).* The CSLI warrant was particular and not a general warrant, and … Continue reading
Reversal because of a Fourth Amendment violation isn’t a “favorable termination” for malicious prosecution claims. Butler v. City of New York, 2020 NY Slip Op 33363(U), 2020 N.Y. Misc. LEXIS 10130 (N.Y. Co. Oct. 14, 2020) (Martinez v. City of … Continue reading
The trial court’s grant of the motion to suppress was error. The officer’s reading of the functioning brake light statute was reasonable that the center light being out was cause for a stop. People v. Pena, 2020 NY Slip Op … Continue reading
Plaintiff’s manual strip and body search in prison for a missing syringe was reasonable. Parker v. Woods, 2020 U.S. App. LEXIS 36359 (5th Cir. Nov. 19, 2020):
Not a search claim: Admission of jail telephone calls didn’t undermine the presumption of innocence. Defendant wouldn’t stipulate to authenticity so the government had to establish the source of the calls. United States v. Arayatanon, 2020 U.S. App. LEXIS 35922 … Continue reading
Officers had the requisite degree of suspicion for a strip search at the jail for a misdemeanor. He had suspicions there was something amiss with defendant’s unusual small talk, but, coupled with the facts, added up. Reagan v. State, 2020 … Continue reading
D.S.D.: Seizure of work product from def’s jail cell for witness tampering was reasonable and run through a taint team
The search of defendant’s jail cell for evidence of witness tampering in his “work product” was reasonable, and the government used a taint team to segregate it. “The government’s conduct in this case was neither ill-conceived nor outrageous. It must … Continue reading
CA9: Prison visitor should be allowed to avoid a strip search based on RS by being permitted to leave
A prison visitor has the right to leave a prison to avoid a strip search based on reasonable suspicion as a condition of entry. Qualified immunity, however, is granted because the right was not well established before this case. Cates … Continue reading
MA: SW affidavit showed inference def’s house was base of operation for drug operation, and that’s nexus
The affidavit for search warrant here raised more than an inference that defendant’s home was used as a base of operations for his drug dealing enterprise, and that was nexus. Commonwealth v. Andre-Fields, 2020 Mass. App. LEXIS 145 (Sept. 23, … Continue reading
Strip searches of inmates coming into the county jail without reasonable suspicion the detainee had contraband or weapons were valid under Florence and under the state constitution. “Plaintiffs have not demonstrated the strip searches at issue are not reasonably related … Continue reading
M.D.Fla.: Civilly committed sexually violent predator was effectively in prison for his 4A claim against room search
“Spaulding is civilly committed to the Florida Civil Commitment Center (‘FCCC’) under the Sexual Violent Predators Act” and his Xbox and blu-ray player were seized because having them wasn’t appropriate for his custody level. His due process and Fourth Amendment … Continue reading
CA5: Search for ptf’s ID was reasonable when she refused to ID self and was charged with obstruction
The search of plaintiff’s wallet for her ID was reasonable when she refused to identify herself when stalled on an interstate highway. A search of the car for her wallet and then the search of the wallet was thus reasonable … Continue reading