- E.D.Ark.: Negligent investigation doesn’t state a 4A claim for malicious prosecution
- N.D.Ind.: Mistake as to address for SW was precipitated by def and doesn’t implicate Franks
- E.D.N.C.: SW for data off phone isn’t governed by Carpenter
- CA10: BLM can’t force oil and gas operator to put BLM’s lock and key on property for annual inspections
- Dept. of Labor has proposed an unemployment drug-testing rule, and comment period has closed
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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: Ineffective assistance
W.D.Va.: Def counsel’s decision not to pursue a motion to suppress was reasonable and designed to prevent superseding indictment with higher MM
Defense counsel’s decision not to pursue a motion to suppress was reasonable under the circumstances. Defendant was already facing a 60 month minimum. The government made clear that they had additional counts they could bring but wouldn’t if the defense … Continue reading
Failure to properly knock-and-announce is foreclosed as a reason for exclusion under Hudson v. Michigan. United States v. Calligan, 2018 U.S. Dist. LEXIS 173193 (N.D. Ind. Oct. 9, 2018). 2255 petitioner was not prejudiced by defense counsel’s failure to challenge … Continue reading
Defense counsel was not ineffective for not forecasting McNeeley before defendant’s guilty plea. “When a defendant waives the right to have a jury determine guilt or innocence and admits or does not contest guilt, the defendant does so under the … Continue reading
Defendant on a wiretap application was only known by his nickname, and this did nothing to alter the probable cause analysis nor undermine probable cause. United States v. Santiago, 2018 U.S. App. LEXIS 27919 (7th Cir. Oct. 2, 2018) (there’s … Continue reading
Defense counsel’s decision not to call the defendant or other witnesses at a suppression hearing was a strategy decision not subject to second guessing except in extraordinary circumstances. Defense counsel concluded they lacked credibility. Here, defendant testified at trial to … Continue reading
Defendant wasn’t seized by being bumped by police car because he went another three miles without stopping. “Moreover, the Eleventh Circuit and courts across different circuits have concluded that no seizure occurs where police attempt to stop a fleeing vehicle … Continue reading
Defendant didn’t get ineffective assistance of counsel from defense counsel not challenging warrantless CSLI production without a warrant before Carpenter. United States v. Lewisbey, 2018 U.S. Dist. LEXIS 165566 (N.D. Ill. Sep. 27, 2018). Defendant claimed for the first time … Continue reading
N.D.Ohio: Parole officers’ clinical reports didn’t have any of the added color at the suppression hearing, so the court doesn’t credit their testimony
“Based upon the totality of the circumstances and the Court’s assessment of the credibility of the parole officers, the Court finds that the [parole authority] lacked reasonable suspicion to search Neff’s cell phone. The results of the search, therefore, must … Continue reading
The arrest of the codefendant inside house permitted a protective sweep. United States v. Jones, 2018 U.S. Dist. LEXIS 166347 (N.D. Okla. Sep. 27, 2018). “These nine ineffective assistance of counsel claims are properly evaluated under the Strickland standard, meaning … Continue reading
IA: No IAC for not challenging evidence obtained in another state where state law was more defense favorable; can’t show outcome would be different
Defendant was arrested in Nebraska, and Iowa authorities sought his DNA there to connect him to an Iowa crime. Nebraska’s standard for obtaining DNA is less demanding. He can’t show on post-conviction that defense counsel was ineffective for not challenging … Continue reading
“Eason’s counsel was not ineffective for failing to allege that the search warrant was not signed by the affiant because the Court’s records clearly demonstrate that it was. Had that not been the case, the Court who carefully examined the … Continue reading
CA3: Govt agreed that SW materials could be released in terrorism case, but not plea agreement; no abuse of discretion in keeping plea papers sealed
In a terrorism case, the government agreed that search warrant materials could be unsealed, but resisted disclosure of plea agreements and plea related materials. They were presumptively open records at common law and the First Amendment, but the government made … Continue reading