- D.Colo.: Landowners consented to entries by BLM when leasing to oil and gas companies
- NY3: Failure to search cell phone within the time limits on the warrant after timely seizure required suppression
- IL: Def’s stop was without RS, and his flight didn’t add anything to the totality
- techdirt: Cop Shuts Off Dashcam During Drug Dog Sniff. Appeals Court: This Is Fine.
- Law Review: Government Analysis of Shed DNA Is a Search under the Fourth Amendment
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Section 1983 Blog
"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: § 1983 / Bivens
KS: Stop-and-frisk was a factually justified “discretionary function” and the officer couldn’t be sued
With a due comparison to Det. Martin McFadden’s actions in observing John W. Terry and Richard D. Chilton in Terry v. Ohio, the officer on the totality was justified in inquiring of defendant what he was doing. Plaintiff wasn’t arrested, … Continue reading
D.N.M.: There was at least circumstantial evidence defs’ DNA would be found in evidence to justify SW for it
There was sufficient probable cause defendants were involved in a robbery and could be linked to evidence in the case for DNA samples to be taken from them by search warrants. “Although the Search Warrant lacks direct evidence that the … Continue reading
HI: Moving to suppress seizure of pill bottle incident to arrest didn’t cover later search of the bottle; issue waived
Defendant’s challenge to removal of a pill bottle from his person did not preserve a challenge to search of the pill bottle at the police station. “In any event, we conclude that Sado’s argument on appeal is without merit. Officer … Continue reading
C.D.Ill.: Ins. co. has standing to sue that audit would be 4A violation, and its claim is ripe. Motion to dismiss denied.
An insurance company subject to government audit has standing to challenge the legal basis for the audit. Its Fourth Amendment claim is ripe: “Fidelity’s Fourth Amendment claim in Count 1 presents a purely legal question, which renders the claim fit … Continue reading
“When reviewing the information known to Seidl at the time of Zavatson’s arrest, we conclude that no reasonable officer could have believed, based on anything more than speculation, that Zavatson had committed the purported theft. As an initial matter, there … Continue reading
CA6: Ptf’s guilty plea after losing suppression motion wasn’t collateral estoppel to § 1983 and Heck not implicated
Plaintiff sued over his body cavity search that was part of his state case. He litigated and lost in state trial court then pled guilty. His federal action does not implicate his conviction, and it can proceed under Heck v. … Continue reading
CA10: Defs did not violate clearly established 4A law by accessing the Utah Controlled Substance Database on plaintiffs’ prescriptions
Defendants did not violate clearly established Fourth Amendment law by accessing the Utah Controlled Substance Database on plaintiffs’ prescriptions (and the Fourth Amendment claim goes undecided). Pyle v. Woods, 2017 U.S. App. LEXIS 21713 (10th Cir. Nov. 1, 2017):
CA6: Plf’s stipulation there was PC in his criminal case that led to dismissal was judicial estoppel to bringing a civil case on the same facts
Plaintiff’s stipulation there was probable cause in his criminal case that led to dismissal was judicial estoppel to bringing a civil case on the same facts. Grise v. Allen, 2017 U.S. App. LEXIS 21358 (6th Cir. Oct. 26, 2017). The … Continue reading
CA5: Search of wrong house leads to liability: “An officer who makes no reasonable effort to correctly identify the place to be searched does not get immunity merely because someone else was leading the search.”
Sloppy police work leading to a search of the wrong house on a warrant leads to loss of qualified immunity: “An officer who makes no reasonable effort to correctly identify the place to be searched does not get immunity merely … Continue reading