- CT Tax & Admin.: Order to DoC employees to their search cell phones for public records was excessive
- N.D.N.Y.: Mere disagreement with state court 4A determination still bars habeas review
- E.D.N.C.: Removing protective sweep from affidavit for SW still leaves PC
- TN: No right to reconsideration of denial of motion to suppress on transfer to a different trial judge after denial
- CA6: Officer executing a state arrest warrant doesn’t have to independently verify its validity
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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
CA2: Just because officers couldn’t agree on def’s words of consent doesn’t mean there wasn’t consent
Just because none of the officers could recall the exact words used, they were consistent that defendant consented, and the district court’s crediting that was entitled to substantial weight. United States v. Frye, 2020 U.S. App. LEXIS 28465 (2d Cir. … Continue reading →
N.D.Cal.: Court doesn’t credit that a person could just walk away from a police encounter; people get shot for that
Defendant was seized by a police car parked face-to-face with his car and spotlights shining in. Defendant couldn’t be expected to drive on the sidewalk to just leave. “The Court concludes that when the uniformed police officer here parked a … Continue reading →
Bivens won’t be extended to an alleged unprovoked attack at a VA hospital metal detector. Oliva v. Nivar, 2020 U.S. App. LEXIS 28052 (5th Cir. Sept. 2, 2020). “The issue before the Court is whether the Government violated Rule 16 … Continue reading →
“Hawkins conceded in his criminal proceeding that he consented to Fults’s search of his vehicle. To the extent that he now claims that his consent was insufficient because he did not own the vehicle, reasonable jurists would agree that his … Continue reading →
PA: Def gets benefit of Birchfield by adequately raising issue before it was even decided; but he loses on merits
Defendant would get the benefit of Birchfield because he developed and preserved the same argument below. He loses on the merits, however, because he voluntarily consented before the officer told him of the criminal penalties for refusal, so his consent … Continue reading →
Police came to defendant’s house for a community caretaking call, and they heard a person inside calling for help. They knew defendant was on probation for firearms, that he had a history of drug use, and that he had surveillance … Continue reading →
Plaintiff’s response “absolutely” during a frisk to looking in his wallet was reasonably determined to be consent. His argument over the words used didn’t create a sufficient question of fact. Gale v. O’Donohue, 2020 U.S. App. LEXIS 25752 (6th Cir. … Continue reading →
A search waiver as a condition of a bail bond is valid in Georgia. Watson v. State, 2020 Ga. App. LEXIS 446 (Aug. 12, 2020):
The officer had reasonable suspicion but he asked for consent to search defendant’s person for a weapon, which he granted. It was consensual on the totality. Defendant didn’t make a state constitutional argument in the trial court but did on … Continue reading →
CA11: Stone bars 2254 on a 4A claim; the question is availability of a trial court remedy and appeal, not whether it was correct
2254 CoA denied under Stone. He had a suppression hearing in the trial court and appealed it. “While Mr. Brantley argued that the 2d DCA’s decision was unreasonable, he does not contend that he was denied the opportunity to argue … Continue reading →
“Even if we assume the Fourth Amendment was implicated when Gonzalez’s wife showed the iPad videos to the police, Gonzalez’s wife had apparent authority to permit police to view the iPad videos because she brought the iPad from her family’s … Continue reading →
The search warrant for storage buildings was issued with probable cause, so the good faith exception is moot. United States v. Payne, 2020 U.S. Dist. LEXIS 131805 (S.D. Ohio July 27, 2020).* Defense counsel wasn’t ineffective for not challenging CSLI … Continue reading →
“While Lindquist makes a conclusory statement that his detention was unlawful, he failed to adequately develop an argument in support of this contention. The district court’s findings have adequate support in the record. ‘Our Court will not consider an argument … Continue reading →
N.D.W.Va.: GFE applies: “This was no cowboy operation. The agents in this case were extremely careful in the efforts to obtain evidence and to seek multiple warrants.”
There was plenty of probable cause in the 53 page affidavit that recounted all the officers had done and learned in their investigation. “In addition, this Court would again find that the ‘good faith’ exception to the exclusionary rule established … Continue reading →
D.Neb.: No return of electronic media that had CP on it because def could possibly recover the contraband after erasure
Defendant is not entitled to return of electronic devices and media containing child pornography because of the mere possibility that the contraband could be recovered from it even after erasure. United States v. Buttercase, 2020 U.S. Dist. LEXIS 125078 (D. … Continue reading →
The officer didn’t have justification for a DWI blood warrant when he first arrived on the scene. That came later, and defendant was about to be administered painkillers in the hospital that would have degraded the BAC. There was exigency. … Continue reading →