- CA11: Standing required for 41(g) motion to return of property
- Nothing online is anonymous; especially Zoom
- OH7: Defense counsel’s strategic choice to not challenge search was reasonable; he exploited it in cross of the officers
- NJLJ: Commentary: Use of Facial Recognition Following Capitol Siege Highlights Issues Seen in NJ Case
- E.D.Wash.: Where buy money was recorded, SW for it has to itemize it
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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: Automobile exception
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
Drunk in public with a vehicle justifies a vehicle search under the automobile exception. People v. Sims, 2021 Cal. App. LEXIS 33 (4th Dist. Jan. 12, 2021). A search warrant that resulted in a search where three buildings were on … Continue reading
A littering offense from a livery cab in NYC justified a stop of the cab and entering it for further evidence of the crime. That resulted in a plain view. United States v. Abreu, 2021 U.S. Dist. LEXIS 1945 (S.D. … Continue reading
Resolving tension in its cases, Pennsylvania holds that its state automobile exception requires both probable cause and an actual exigency. Commonwealth v. Alexander, 2020 Pa. LEXIS 6439 (Dec. 22, 2020):
The officer had no subjective or objective reasonable suspicion that the vehicle defendant was driving, his mother’s, was without her permission, just become some people lie. State v. Smith, 308 Ore. App. 84 (Dec. 16, 2020). Defendant was claimed to … Continue reading
In Ohio, a 911 hang-up call is treated as presumptively an emergency until shown otherwise. State v. Walter, 2020-Ohio-6772, 2020 Ohio App. LEXIS 4622 (5th Dist. Dec. 17, 2020). A police officer’s property was searched under a warrant. The warrant … Continue reading
“Defendant retorts that, if in fact Sgt. Concepcion discovered the marijuana odor early in the traffic stop, he should have begun the search immediately rather than waiting for the arrival of Investigator Gould, citing no caselaw in support. The Court … Continue reading
Probable cause that a vehicle had open containers in it permitted a search of the locked glove compartment because it was a place where an open container could be. People v. McGhee, 2020 IL App (3d) 180349, 2020 Ill. App. … Continue reading
N.D.Ohio: Transporting package in anticipatory warrant from apt complex office to own apt doesn’t give PC for the car
In a controlled delivery case, the package was left at an apartment building office, and then defendant moved it to his apartment by his car. Still, there was no probable cause for search of his car. United States v. Reid, … Continue reading
D.C.Cir.: IAC claim presented first in court of appeals decided without remand; claim fails on its face
Defendant raised his ineffective assistance claim first in the Court of Appeals. Usually, the court says it would remand for an evidentiary hearing. Here, however, his allegation is facially insufficient and the issue is decided without a remand. The challenge … Continue reading
Defendant’s public social media posts (here, SnapChat) about his drug activities provided probable cause to search his vehicle for drugs. United States v. Manuel, 2020 U.S. Dist. LEXIS 199261 (S.D. Iowa Oct. 21, 2020):
Seeing contraband in plain view justifies an entry into a car under the automobile exception. State v. Tenold, 2020 MT 263, 2020 Mont. LEXIS 2461 (Oct. 20, 2020). Three controlled buys were probable cause despite defendant’s argument that the officer … Continue reading
“Despite the stop of the Tacoma being pretextual due to information provided by Agent Ford, Trooper Hobbs based the initial traffic stop upon a personally witnessed violation of the law. Thus, [Mr. Simmons’] rights under both the Wyoming Constitution and … Continue reading
Having found a gun during an automobile exception search, the officers weren’t obliged to stop the search. United States v. Green, 2020 U.S. Dist. LEXIS 180561 (W.D. N.Y. Sept. 30, 2020). A CI’s information was reasonable suspicion for a probation … Continue reading