- NPR: Federal Agents Board Buses 100 Miles From Border To Ask, Are You A US Citizen?
- S.D.N.Y.: Protective sweep led to plain view of firearm and cell phone
- AR: Cell phone search suppressed and state gets do over with independent source doctrine
- CA7: Affiant’s omission of adverse info on CI that he had priors, was on probation, and paid didn’t undermine fresh, detailed, and corroborated info
- D.N.M.: Def rejected consent twice but consented on the third non-coercive request
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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: FISA
Defendants’ calls were caught up in a FISA warrant and they were indicted for providing material support to terrorists. The collection under the FISA warrant was valid because the government showed “the purpose” of the surveillance was bona fide national … Continue reading
Just Security: Americans’ Privacy at Stake as Second Circuit Hears Hasbajrami FISA Case by Elizabeth Goitein:
The Atlantic: The FISA Fiasco’s Silver Lining by April Doss: Recently released documents should put to rest fear that the process of surveilling Americans could be as simple as filling out a form for a perfunctory review.
Lawfare: Carpenter and the End of Bulk Surveillance of Americans by Sharon Bradford Franklin:
CNN: FBI releases Carter Page surveillance warrant documents by Jeremy Herb and David Shortell. The 412 page application, warrant, and other papers is here. The applications included Page’s denials made to the FBI before it was sought. NYT: Without Evidence, … Continue reading
NYTimes: N.S.A. Triples Collection of Data From U.S. Phone Companies by Charlie Savage:
Law.com: Judge to Consider This Week Whether to Unseal Vast Surveillance Records by Ben Hancock: U.S. Magistrate Judge Kandis Westmore of the Northern District of California may reveal whether the curtain of secrecy around past electronic surveillance in criminal investigations … Continue reading
The Hill: FBI supervisor warned Comey in 2014 that warrantless surveillance program was ineffective by John Solomon & Alison Spann: An official who supervised the FBI’s Section 215 warrantless phone surveillance program revealed by Edward Snowden in 2013 says he … Continue reading
Lawfare: A Way Forward on Section 702 Queries by Elizabeth Goitein & Robert Litt:
The Atlantic: The Populist Right’s Elitist Approach to Surveillance Abuses by Conor Friedersdorf: If only the Republican Party were as attentive to the violations of the rights of ordinary Americans as it is to the FBI’s treatment of Donald Trump.
Curious about the FISA process? See Just Security: It Ain’t Easy Getting a FISA Warrant: I Was an FBI Agent and Should Know
Just Security: It Ain’t Easy Getting a FISA Warrant: I Was an FBI Agent and Should Know by Asha Rangappa from March 2017.
Lawfare: The Dubious Legal Claim Behind #ReleaseTheMemo by Orin Kerr: [Spoiler alert: I agree that it is more than dubious since two branches of our government have absolutely no clue what the Fourth Amendment means. It’s like a Franks challenge: … Continue reading