- S.D.Miss.: QI has to be applied but it should be overruled (updated)
- TX14: There has to be a fact dispute to get an art. 38.23(a) jury instruction on legality of search
- Reason: Grand Jury Indictments Paint a Picture of Deadly Deceit in Houston Narcotics Division
- CA1: Inventory was shown to be investigative; suppression affirmed
- W.D.N.Y.: USMJ’s credibility determination is entitled to deference
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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: Private search
Defendant’s wife opened a thumb drive in defendant’s briefcase looking for pictures of herself and his housekeeper when he was overseas. She found a picture of her daughter asleep unclothed from the waist up, and took it to the police … Continue reading
NJ: Warrantless entry into common area of a rooming house violated REP; it was private as to the tenants
The officer’s warrantless entry into the common area of a rooming house, even though the door was unlocked, intruded into a private area where defendant retained a reasonable expectation of privacy. This was not an area open to the public. … Continue reading
An attempt at a post-trial suppression motion in a motion for new trial was denied where the defense couldn’t show any merit to the motion in the first place. United States v. Baylor, 2019 U.S. Dist. LEXIS 129708 (D.D.C. Aug. … Continue reading
In this child pornography case, defendant argued that NCMEC was not a private actor citing Ackerman from the Tenth Circuit, but the record was not sufficiently developed for the court to conclude that. There was probable cause for the search … Continue reading
The exclusionary rule does not apply to drug testing in a termination of parental rights case. In the Interest of L.C.L., 2019 Tex. App. LEXIS 6018 (Tex. App. – Houston (14th Dist.) July 16, 2019). The smell of marijuana during … Continue reading
Defendant’s disclaiming ownership of her purse twice when asked about it was abandonment and a waiver of any reasonable expectation of privacy. State v. Martin, 2019-Ohio-2792, 2019 Ohio App. LEXIS 2898 (12th Dist. July 8, 2019).* The search warrant for … Continue reading
“We disavow the idea that Article 38.23 extends the Fourth Amendment to private citizens acting in a private capacity. We reaffirm that the Fourth Amendment is a restraint on government and that it does not apply to private individuals who … Continue reading
N.D.Ind.: No REP in an open office where others were free to come and go and document was taken at police insistence
Here the court considers a post-verdict motion to suppress. The court noted that there were kernels of cause for a motion to suppress, albeit a private search of an office, but the complete picture didn’t develop until trial. Giving he … Continue reading
Defendant took his computer in for repair. The computer tech determined the hard drive was failing, and he consented to replacement and moving the files. The tech found child porn and told the police. They came and their view of … Continue reading
In a child pornography investigation, the date of the alleged obtaining the child porn doesn’t limit the scope of the search warrant. Moreover, the fact it was known to be on one device does mean that only that device can … Continue reading
Lexology: When monitoring employees’ computer activity, don’t overreach by Robin Shea:
Google and NCMEC did not conduct Fourth Amendment searches when they encountered child pornography tied to his email account. They did private searches for their own purposes, and NCMEC did not expand Google’s private search. United States v. Ringland, 2019 … Continue reading
The fact AOL is a mandated reporter of child pornography that it discovers does not make AOL a state actor in its discovery of child pornography. Thus, AOL’s search of the email was a private search. Then there was a … Continue reading
S.D.Cal.: Yahoo’s intensive internal investigation into CP trafficking reported to NCMEC and then law enforcement was purely private search
Yahoo conducted an extensive internal investigation with public source information and its own records to identify accounts trafficking in child pornography from the Philippines. They reported twice to law enforcement and to NCMEC, and then law enforcement got involved. Yahoo’s … Continue reading
PA: Private university public safety conducted dorm searches for drugs after drug induced fight; it was a private search
Defendant was a student at Villanova University. There was a violent confrontation in a dorm between students who had admitted ingesting likely too much LSD. The University’s Public Safety Department and University officials conducted dorm searches. They had no arrest … Continue reading