- AP: Google tracks your movements, like it or not
- S.D.N.Y.: Franks challenge that SW general allegation about sex traffickers doesn’t apply to def isn’t false at this stage
- D.Mont.: RS for stop near the border when driving appeared evasive; on stop there were furtive movements
- CA8: Ignoring exculpatory evidence before a child abuse seizure of children denies QI to officers
- MA: Two day delay in getting SW for cell phone wasn’t unreasonable
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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: Franks doctrine
The government got consent to search a package for drugs. That consent did not include cutting a candle in half to find the drugs. Consent to search doesn’t include destruction of property. United States v. Swenton, 2018 U.S. Dist. LEXIS … Continue reading
VI: In a traffic stop, def delayed in getting out and made furtive movements; officer asked “what do you have there?” Answer [“Just some weed.”] wasn’t 5A violation under Berkemer
Defendant was stopped for passing on a double solid line. The officer called out through the vehicle PA for him to get out of the car, but he first fished around moving things. When the officer got to the window, … Continue reading
The right to counsel applies at suppression hearings. Defendant’s attempted waiver was ineffective. Shabazz v. State, 2018 Ark. App. 281, 2018 Ark. App. LEXIS 298 (May 2, 2018). The officer writing the affidavit misstated the evidence that another officer smelled … Continue reading
The police obtained a thermal imaging warrant, and it was based on probable cause, information from a CI that was corroborated. That led to a search warrant for the premises, and it was also based on collective knowledge of the … Continue reading
CA10: Under the Franks doctrine, relevance doesn’t equate with materiality; district court erred in finding Franks violation from omission of report
Under the Franks doctrine, relevance doesn’t equate with materiality. Defendant was the target of a health fraud investigation with a detailed affidavit that omitted a reference to a letter from state regulators that made no reference to health care fraud. … Continue reading
D.Mass.: Def made his Franks challenge at the suppression hearing; statement was reckless and completely undermined nexus to house
Defendant showed enough to get a Franks hearing. United States v. Roman, 2017 U.S. Dist. LEXIS 167167, 2017 WL 4517963 (D. Mass. Oct. 10, 2017). “Following the Franks hearing—which occurred on multiple days spread out between November of 2017 and … Continue reading
S.D.Fla.: The fact FL law provides a reasonable expectation of privacy in bank records has nothing to do with an IRS summons
The fact Florida law provides a reasonable expectation of privacy in bank records has nothing to do with an IRS summons for bank records. Presley & Presley P.A. v. United States, 2018 U.S. Dist. LEXIS 65421 (S.D. Fla. Apr. 16, … Continue reading
The affidavit for the search warrant established probable cause that defendant’s marijuana grow was for distribution and not for personal medical use. Commonwealth v. Richardson, 2018 Mass. LEXIS 236 (Apr. 17, 2018). The Franks challenge here was over an internet … Continue reading
TN: Argument “the rule” of witness exclusion of Rule 615 at suppression hearing has to be made in trial court
Defendant didn’t preserve for appeal his argument that the suppression hearing court allowed witnesses to sit in the rehearing of the suppression hearing because he didn’t make it to the trial court. At any rate, the transcripts of the hearing … Continue reading
In the Fifth Circuit, a person’s identity and nationality is not subject to the exclusionary rule. United States v. Meza-Gonzalez, 2018 U.S. Dist. LEXIS 63254 (W.D. Tex. Apr. 16, 2018). Defendant fails on the second prong of Franks: excising the … Continue reading
Inevitable discovery applied to the search of defendant’s backpack. He was arrested, and the search would have occurred as a result of that. The merits of defendant’s search claim is thus moot. Winborn v. State, 2018 Ind. App. LEXIS 133 … Continue reading
“We conclude that, contrary to Combs’ assertions, there is no evidence that Davis intentionally or recklessly omitted material information from the affidavit. In fact, Davis’s testimony at the suppression hearing shows that the facts not included in the affidavit would … Continue reading