- CA3: Frisk was justified by RS and plain feel of drugs resulted
- Bill of Rights Day — 226 years ago today the Bill of Rights was ratified
- CA8: After exigency for entry abated, police had consent from def’s wife to remain on premises
- CA1: SW affidavit’s misstatements were careless at worst and not material to finding of PC
- D.Neb.: Consent derived from smartphone app Spanish translation was voluntary on totality
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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
Exigency supported the police entry into defendant’s home because of concern for safety of the children and a domestic dispute. After the entry and the abatement of the exigency, defendant’s wife consented to the officers staying in the house. United … Continue reading →
Defendant was riding a Greyhound bus from Denver to Indianapolis, and it had a bus change in Omaha. Luggage was pulled off the bus, and an interdiction officer noticed the new bag with defendant’s name on it. He also detected … Continue reading →
Defendant refused to consent to a search so the officers made the choice to impound his car. It was a reasonable choice, although with a mixed motive to search and not just inventory. Nevertheless, it’s valid. State v. Gray, 2017 … Continue reading →
Defendant filed a motion to suppress but didn’t want the trial delayed. Based on the time for the government to respond and the USMJ to prepare findings of fact and conclusions of law, the trial would have to be continued … Continue reading →
Defendant had a long driveway, and officers drove up the driveway. It was not part of the curtilage. A gate at the end, however, did mark the curtilage. After that, consent to enter was granted. United States v. Smith, 2017 … Continue reading →
The officer’s encounter with defendant in the ER initially asking if he had “any drugs or weapons” was not consensual. “The trial court concluded that Officer West’s encounter was not a consensual encounter. The trial court emphasized that West approached … Continue reading →
W.D.Mo.: Knock-and-announce didn’t apply to an open door; plain view reasonable, but wife’s consent was vitiated by threat of jail if she didn’t sign form
Officers came to defendant’s house both on a call about the welfare of children living there and with a pre-existing warrant for defendant’s arrest. They encountered one of the children outside taking trash to the street and determined that defendant … Continue reading →
CA6: Def had a gun pointed at him during arrest, but it was put away after he was handcuffed; consent found on totality
“The district court did not clearly err in determining that Pavon’s consent to the search of his vehicle was voluntary and without coercion. Officer Josh Walters testified that he twice asked for and received consent from Pavon to search the … Continue reading →
A local police officer was working off-duty security at a grocery store on the night shift. He’d seen defendant in there many times in the previous four years in the store, and defendant was usually under the influence. Plus, the … Continue reading →
The trial court didn’t err in finding that defendant consented to search of his cell phone and DNA at the hospital after a murder. He was strenuously trying to show the police that he wasn’t involved and was volunteering consent. … Continue reading →