- AP: Google tracks your movements, like it or not
- S.D.N.Y.: Franks challenge that SW general allegation about sex traffickers doesn’t apply to def isn’t false at this stage
- D.Mont.: RS for stop near the border when driving appeared evasive; on stop there were furtive movements
- CA8: Ignoring exculpatory evidence before a child abuse seizure of children denies QI to officers
- MA: Two day delay in getting SW for cell phone wasn’t unreasonable
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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: Warrant requirement
By statute, magistrates issuing search warrants have only district-wide jurisdiction, and here the magistrate lacked authority to issue the search warrant at issue. The state did not show any exceptions. State v. Frazier, 2017 Tenn. Crim. App. LEXIS 861 (Sept. … Continue reading
DE: Def doesn’t have to be named as a suspect for a SW to be valid because it’s a search for things which could be evidence
“It is Defendant’s burden to prove the warrant is unsupported by probable cause. Defendant has not met this burden. The search warrant was issued solely for the vehicle. Whether Defendant was a suspect at the time of the application for … Continue reading
CA8: (1) In drug conspiracy case, the govt overcame staleness because of ongoing crime; (2) Issuance of SW in D.Neb. by non-cross designated USMJ in N.D.Iowa was subject to GFE
First, the search warrant in this drug conspiracy case wasn’t stale, although a long time had elasped during and between the times recorded in the affidavit of things that happened. While the evidence wasn’t strong, the deference accorded the issuing … Continue reading
N.D.Ala.: Taint team not required for this document and ESI search, and that part of process vacated
The USMJ’s requirement of a taint team to review the materials seized in execution of the search warrant is unnecessary in this case and not required by the Fourth Amendment, and it is set aside. United States v. Sealed Search … Continue reading
Defendant’s jurisdictional argument that AOL’s emails were in Virginia and not amenable to a New Hampshire search warrant wasn’t presented to the trial court, so it’s waived. State v. Bergeron, 2017 N.H. LEXIS 143 (June 30, 2017). [Note: Jurisdiction of … Continue reading
Oral testimony in support of issuance of a search warrant did not have to be transcribed and made part of the record before the warrant was served. State v. Wilson, 2017-Ohio-5484, 2017 Ohio App. LEXIS 2544 (3d Dist. June 26, … Continue reading
OR: There is no state constitutional requirement the state get a telephonic warrant to avoid exigency
The state showed adequate evidence that it would take 4-5 hours to obtain a search warrant in this case, and that was enough to show exigency here. The defense put on proof that the state could have obtained a telephonic … Continue reading
D.D.C.: Google has to produce e-mails on server in Ireland, declining to follow 2d Cir. in Microsoft II
After Second Circuit split 4-4 on whether Google could be compelled to provide e-mails stored in a server in Ireland by a warrant, a USMJ in D.C. holds that Google has to produce e-mails stored on that server. In the … Continue reading
“In their second amended complaint, the Garwoods did assert a Fourth Amendment claim. … It is unclear what became of it, as it was still live when the State moved for summary judgment and survived that motion. In any event, … Continue reading
W.D.N.Y.: SW materials not yet releasable because investigation is ongoing; defense can get it later
The search warrant materials in this case are not released yet because the case is still pretrial and there is investigative and CI information that shouldn’t be disclosed yet. “In evaluating a common law claim of access to judicial documents, … Continue reading
The affiant swore to the affidavit for search warrant before the issuing magistrate, but it inadvertently wasn’t signed. That’s an error cured by testimony, even if the magistrate has to testify too. State v. Angel, 2017 Iowa Sup. LEXIS 41 … Continue reading
Defendant’s unsupported testimony that the search warrant does not appear to have a judge’s original signature on it fails in the face of testimony from the officer that he saw the judge sign it. The fact it took 120 days … Continue reading