- WaPo: Opinion: Breonna Taylor’s death sparked remarkable changes to no-knock raids across America
- CA6: One controlled buy from a house is PC for SW
- NY: Failure to swear to facts of standing dooms motion to suppress
- NY dissent: NY’s pre-Rodriguez cases are suspect
- D.Kan.: Def had a loaner car loaned by a person with no authority over it; no standing
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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: Abstention
Plaintiff sued for malicious prosecution after he was imprisoned for a 1977 murder, paroled, and finally pardoned by the Governor. The pardon overcame the Heck bar, and the claim became ripe with the pardon. The court takes the occasion to … Continue reading
The district court erred in dismissing plaintiff’s § 1983 false arrest claim against the deputy on Heck grounds because Heck did not apply–the charge that formed the basis for his § 1983 claim was dismissed, and his § 1983 suit … Continue reading
Plaintiff was charged with OVI and was convicted at trial. On appeal to the next level he was found not guilty of that but convicted of evading an interlock device. He sued over the OVI arrest, and it is dismissed … Continue reading
D.Nev.: Omission of CI’s felony conviction and motive to provide information justifies Franks hearing
“As further explained below, because the investigating detective’s omission of a tipster’s felony conviction for an offense bearing on his truthfulness in her affidavit supporting her application for a search warrant that led to the discovery of evidence on that … Continue reading
Habeas doesn’t recognize Fourth Amendment claims. In re Lopez, 2019 Cal. LEXIS 8819 (Nov. 20, 2019); In re Wood, Wood, 2020 Cal. LEXIS 605 (Jan. 29, 2020). This habeas petitioner doesn’t show any likelihood of success to get appointment of … Continue reading
Defendant in his 2255 alleges a Franks violation, but he had the ability and method to do it in the district court before conviction and habeas isn’t the place. United States v. Youker, 2019 U.S. Dist. LEXIS 196001 (E.D. Wash. … Continue reading
TN: Defense counsel’s failure to object to officer’s testimony of def’s confession during suppression hearing violated Simmons but was harmless
Defendant on post-conviction showed that defense counsel’s performance was deficient for not objecting under Simmons to a state investigator’s testimony that he confessed to the crime in his suppression hearing testimony. Defendant, however, can’t show prejudice because of the other … Continue reading
E.D.Va.: Request for consent within 20 seconds of handing over tickets didn’t unreasonably extend stop
A request for consent within 20 seconds of handing the tickets to the defendant did not unreasonably extend the stop. The court finds the consent voluntary. United States v. Perez-Almeida, 2019 U.S. Dist. LEXIS 144705 (E.D. Va. Aug. 26, 2019). … Continue reading
CA7: After state court affirms denial of motion to suppress, issue preclusion and abstention bar damages suit
Issue preclusion and full faith and credit deny federal courts the ability to determine a Fourth Amendment damages claim in an action after the state court denied suppression. Wade v. Barr, 2019 U.S. App. LEXIS 24723 (7th Cir. Aug. 20, … Continue reading
The district court misapplied the Heck doctrine by assuming the search of plaintiff’s car was reasonable. The real question is whether the suit is to challenge the legality of the search. “On remand, the judge will need to resolve the … Continue reading
“Wren cannot meet the statutory criteria for filing a second or successive § 2255 motion. First, even assuming that the search warrant is ‘newly discovered’ insofar as it had been sealed, it does nothing to establish by clear and convincing … Continue reading
Defendant challenged his home visitation condition under the Fourth Amendment on appeal without having objected below. It is reviewed for plain error, and it’s certainly not. United States v. Dominguez-Villalobos, 2019 U.S. App. LEXIS 23184 (5th Cir. Aug. 2, 2019).* … Continue reading
It was not unreasonable for a school resource officer to handcuff for 15 minutes a 7-year-old sobbing second grader who he suspected of active resistance to going to the principal’s office. Aside from reasonableness, qualified immunity applies because the right … Continue reading
Defense counsel’s failure to raise an excessive force claim as a part of his arrest wasn’t ineffective assistance of counsel on the merits of the arrest or subsequent search. Waters v. United States, 2019 U.S. Dist. LEXIS 128341 (D. S.C. … Continue reading
CA10: While some might disagree with OCCA’s opinion on abandonment, it’s not “unreasonable” under AEDPA
This is a § 2254 habeas challenging via an IAC claim whether defense counsel properly litigated his motion to suppress over whether his backpack was abandoned. That was also resolved in the Oklahoma Court of Criminal Appeals. While people might … Continue reading
The declaration used to attempt to show defendant’s guest standing doesn’t tie defendant’s relationship to the property to the time of the search. Moreover, on the day in question, his truck was parked along a fence far enough from the … Continue reading
Carpenter not retroactive for a successor habeas. In re Symonette, 2019 U.S. App. LEXIS 20428 (11th Cir. July 9, 2019):
Plaintiff’s suit against his search and seizure that led to his conviction is barred by Heck v. Humphrey. “The appropriate vehicle for such a challenge is not § 1983 litigation, but direct or collateral appeal.” Gonzalez v. Yepes, 2019 U.S. … Continue reading