- 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: Issue preclusion
Defendant’s jail calls to his wife were not privileged because he knew from the recording at the start of the call that it was being recorded. Newman v. State, 2021 Tex. App. LEXIS 293 (Tex. App. – Eastland Jan. 14, … Continue reading
Plaintiff’s claim that his arrest and search was invalid because the statute under which he was stopped and arrested was unconstitutional is barred by Michigan v. DeFillippo. Quigley v. City of Huntington, 2021 U.S. App. LEXIS 760 (4th Cir. Jan. … Continue reading
Defendant’s address wasn’t included in the affidavit for the search warrant, but its picture was and there was no mistake on the place searched. That was sufficient. United States v. Lingo, 2021 U.S. Dist. LEXIS 3861 (E.D. Tenn. Jan. 8, … Continue reading
“Mr. Birch’s convictions preclude him from establishing a genuine issue of material fact as to his Fourth Amendment excessive force claims against Officers Sinclair, Page, and Stout, Fourteenth Amendment malicious prosecution claims, and Fourth Amendment false arrest claims. In dismissing … Continue reading
Petitioner’s 2254 successor petition is denied on his claim that his detention was unreasonable that led to his confession. “Nero’s claims do not meet the statutory criteria. He indicates that his claims do not rely on a new rule of … Continue reading
“We begin with Price’s Fourth Amendment excessive force claims as alleged in his proposed amended complaint. The district court concluded that Price’s claims, even as amended, remained ‘inseparable’ from his conviction for battery of an officer and, thus, were barred … Continue reading
E.D.Pa.: State court’s suppression of evidence is a fact question for trial on underlying facts and findings and not preclusive
Plaintiff was charged in state court with possession, and the state court credited his version over that of the officers on the basis for the stop because their testimony was contradictory and confusing. Still, that doesn’t have preclusive effect in … Continue reading
“Heck bars Mr. Hooks from recovering damages based on the first four alleged uses of force. Mr. Hooks’s no contest plea to two counts of assault and battery of a police officer means he admitted repeatedly hitting the officers before … Continue reading
CA6: State court’s failure to remand for more factfinding was still a “full and fair opportunity to litigate” his 4A claim
Habeas petitioner’s CoA request is denied. His claim that he was denied a “full and fair opportunity to litigate” his Fourth Amendment claim because the state appellate court didn’t remand for fact finding is rejected. He had the opportunity to … Continue reading
S.D.N.Y.: “Unconscionable breakdown” in SW litigation process can state habeas claim, but petitioner doesn’t plead or show one
“Petitioner does not argue that he was not provided a correct procedure to redress his Fourth Amendment claim. And indeed, there is no basis for such an argument, as the Second Circuit has indicated that New York’s procedure for litigating … Continue reading
N.D.Cal.: Failure to mention denial of a TRO in civil litigation over similar issue material enough to get Franks hearing
The fact a TRO had been denied in a civil case involving some of the same facts was potentially material under Franks, and he gets a Franks hearing. Also, defendants have no standing in the search of a co-conspirator’s home. … Continue reading
Defendant’s habeas claim that the application for the GPS tracking warrant was based on false information was barred by Stone v. Powell. Neil v. Forshey, 2020 U.S. App. LEXIS 34461 (6th Cir. Oct. 30, 2020).* Defendant’s successive habeas petition raises … Continue reading
“Here, Officer Guagliardo heard multiple shots coming from an apartment complex and seconds later saw Oliver, and only Oliver, fleeing the area. When instructed to stop, Oliver ran faster. Officer Guagliardo heard screams coming from the complex. Based on the … Continue reading
A ShotSpotter report was specific as to a shot coming from a rooftop in the Bronx. That house was the subject of many police calls. This led to defendants being encountered by officers who discussed with them what was going … Continue reading
Habeas petitioner’s allegation state court decision on his Fourth Amendment claim was erroneous isn’t enough to get appellate review under Stone. CoA denied. Cisneros v. Sec’y, Dept. of Correction, 2020 U.S. App. LEXIS 30618 (11th Cir. Sept. 24, 2020).* There … Continue reading