- D.Mont.: “he’s not fucking here—go fucking look” was consent to enter
- Bloomberg Law: INSIGHT: State Investigations—50 Takes on Subpoena, Privilege, Document Rules
- OR: Car owner had no REP from GPS installed by his company before he got the car from them
- FL5: Appellate counsel in direct appeal was ineffective for not arguing automobile exception wasn’t applicable; if it had been argued, court would have reversed
- CA1: Franks offer of proof didn’t show materiality or undermine PC
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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: Consent
The government met its burden of proof that defendants consented to entry into their house to look for a wanted man by their saying “he’s not fucking here—go fucking look” and “he’s not fucking in there—go ahead.” United States v. … Continue reading →
D.N.M.: “Brady does not require the United States to disclose impeachment evidence before suppression hearings.”
“Brady does not require the United States to disclose impeachment evidence before suppression hearings.” United States v. Deleon, 2020 U.S. Dist. LEXIS 9688 (D.N.M. Jan. 21, 2020). Defendant’s motion to suppress for lack of nexus between defendant’s home and possession … Continue reading →
Defendant’s campsite at the Bonaroo music festival and his car were searched on the authority of the license granted by the ticket which said that everybody there was subject to search. Because of that, his campsite had no reasonable expectation … Continue reading →
D.N.M.: Handing back paperwork during stop and then calling def by name led to consensual extension of stop
Defendant was validly stopped for going 3 mph over the speed limit determined by radar. After handing defendant back his paperwork, and saying he could leave, the officer called out his name and kept him there. The court finds this … Continue reading →
“Burns does not dispute the traffic stop’s validity. Credibility is not at issue in the dashcam video, in which Burns freely consents to a vehicle search and which flatly refutes Burns’ claims of involuntariness and illegal post-stop detention. That ends … Continue reading →
The cross corroboration of three CIs’ stories was probable cause. United States v. Wilford, 2020 U.S. Dist. LEXIS 6074 (D.S.D. Jan. 14, 2020). “The officers had probable cause to arrest Mancilla-Ibarra because Fann’s information was veritable, reliable, and corroborated.” The … Continue reading →
“We note, however, that Daino’s acts after the officers entered his residence confirm, instead of refute, his intent to consent to their entry. Daino never protested the officers’ presence. Instead, he later opened a safe for the officers, agreed officers … Continue reading →
D.N.M.: Govt fails in burden of showing consent. Was “yes” acknowledgement of statement to def or assent to search?
The government fails in its burden to show consent to a patdown of defendant’s person. There was a language barrier, and previous questions and statements were translated, but this one wasn’t. “Even though that defendant said ‘yes’ in response to … Continue reading →
OH8: When police at door ask to come in and the occupant stands back and aside, that implies permission and consent
When defendant opened the door and police were there and asked for admission, stepping back and aside implied consent to enter. Police then did a proper protective sweep of the room. City of Westlake v. Dudas, 2020-Ohio-31, 2020 Ohio App. … Continue reading →
The USMJ was involved in a prior qui tam civil case by defendant. Defendant in a later criminal case argues that the USMJ should have been disqualified from considering a search warrant affidavit for her property that led to the … Continue reading →
FL2: Standing aside when answering door for police as to whether someone is inside is consent to entry by action
When police are at the door and ask for a person, and the person answering the door steps aside, it is apparent authority to enter that the wanted person is inside. State v. Smith, 2019 Fla. App. LEXIS 19116 (Fla. … Continue reading →
Defendant’s consent to a search of his car after a traffic stop moots the issue that the stop was based on a mistake of fact. United States v. Prado, 2019 U.S. App. LEXIS 38445 (3d Cir. Dec. 24, 2019).* Facebook’s … Continue reading →