- Reason: ‘Everything Has Been Criminalized,’ Says Neil Gorsuch as He Pushes for Stronger Fourth Amendment Protections
- PA: With MMJ, smell of MJ alone isn’t PC for search of a car; more required
- GA: Contraband in plain view on def’s property didn’t justify warrantless entry to seize it
- W.D.Wash.: iCloud SW temporal limit was impractical
- D.Nev.: “Seeming[ly] strategic activation and deactivation of the body camera” leads to finding of no consent
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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: Standing
VA: RS for a frisk of def just gotten out of car also justified frisk of his car, too, when frisk of person came up empty
Brandishing a gun at another was reasonable suspicion for a stop and frisk of a defendant and then the car. “After the officers found no firearm as a result of their pat down of the appellant’s person, this fact served … Continue reading
Defendant’s red Ford Expedition was seen leaving an armed robbery, and the police were looking for it, finding it driving on the street. They followed, and it pulled into a driveway. Defendant shows no reasonable expectation of privacy in the … Continue reading
One co-conspirator has no standing in GPS tracking of his co-conspirator’s cell phone. The officers also had probable cause to search their car based on: knowledge they were cell phone store burglars, a Snapchat video with defendants having numerous cell … Continue reading
Defendant could be detained during the search of his house under a warrant. When he got up off the floor, there was a key fob underneath him, and he denied it was his. The officers used the panic button to … Continue reading
Crashing a fleeing car here wasn’t unreasonable as excessive force. “Here, we agree with the District Court’s determination that no reasonable juror could find that the force used by Officer Biagini was excessive. It is beyond dispute that, in the … Continue reading
MO: Trial court erred in shifting burden on voluntariness of consent to def and considering failure to testify at suppression hearing
The trial court erred in putting the burden of proof on the defendant to rebut the state’s claim of consent. He didn’t testify, but he cross-examined. The trial court also held against him the failure to testify. State v. Crum, … Continue reading
Defendant’s car was stopped at the driveway he was pulling out of. The car was going to be impounded, but the actual owner came out and said that it was her car. The gun found during the inventory was hers, … Continue reading
The district court did not abuse its discretion in declining equitable jurisdiction under Rule 41(g) for lack of a threshold showing of standing and justiciability. United States v. Stoune, 2021 U.S. App. LEXIS 1178 (11th Cir. Jan. 15, 2021). The … Continue reading
N.D.Ohio: Regular borrowing of a vehicle gave def standing when he had it; affidavit “bare bones” so no GFE
Defendant’s regular borrowing of a vehicle gave him standing in the vehicle when he was driving it. “In sum, the affidavit in support of the December 8, 2017 search warrant fails to provide the requisite ‘“nexus between the place to … Continue reading
“The State appeals the trial court’s order granting Ricardo Fernandez’s motion to suppress after the trial court found the affidavit used to obtain the anticipatory search warrant was deficient and the good faith exception to the warrant requirement did not … Continue reading
Defendant was invited to a party at a vacant building loaned to a friend for purposes of the party. He wasn’t staying past the end of the party. He had no reasonable expectation of privacy in the place searched. People … Continue reading
W.D.Tenn.: Merely being in a friend’s house in one’s underwear during an early morning search isn’t standing
A nonresident defendant found in his underwear at the scene of house search didn’t show guest standing. That alone wasn’t enough. Probably if he brought a toothbrush. United States v. Davenport, 2020 U.S. Dist. LEXIS 242449 (W.D. Tenn. Dec. 28, … Continue reading
A jail call showed defendant’s standing that he lived in the house where the search occurred. The entry to arrest him on an arrest warrant led to a valid plain view. United States v. Essex, 2020 U.S. Dist. LEXIS 238989 … Continue reading
Defendant lived on the grounds of a 24/7 storage building company. At 2:30 am, officers investigating saw cars coming and going from the residence. They approached his building, and the approach way wasn’t curtilage under Dunn. United States v. Powell, … Continue reading
Defendant ordered to stay away from his own marital home as a result of domestic violence no contact order had no standing in the house when he retreated inside to avoid the officer there to check on his violation of … Continue reading