- CT Tax & Admin.: Order to DoC employees to their search cell phones for public records was excessive
- N.D.N.Y.: Mere disagreement with state court 4A determination still bars habeas review
- E.D.N.C.: Removing protective sweep from affidavit for SW still leaves PC
- TN: No right to reconsideration of denial of motion to suppress on transfer to a different trial judge after denial
- CA6: Officer executing a state arrest warrant doesn’t have to independently verify its validity
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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: Plain view, feel, smell
“Deferring to the trial court’s findings of fact and viewing the evidence in a light most favorable to the trial court’s ruling, as we must, the trial court could have reasonably concluded from the evidence at the suppression hearing that … Continue reading
Based on the officer’s observation of baggies of drugs hanging out of a bookbag, the contents were readily apparent. State v. Burroughs, 2020-Ohio-4417, 2020 Ohio App. LEXIS 3301 (3d Dist. Sept. 14, 2020). Defendant’s objection to the R&R had a … Continue reading
AK: Aerial surveillance of a residential backyard to photograph it with a telephoto lens violates the state constitution
Aerial surveillance of a residential backyard to photograph it with a telephoto lens violates the Alaska Constitution where the landowner took precautions to protect his privacy at ground-level. McKelvey v. State, 2020 Alas. App. LEXIS 71 (Sept. 4, 2020):
CA10: Where wrong standard of review applied below, undisputed facts allow appellate court to still decide
“Because the evidence presented by the government at the evidentiary hearing in this case was largely undisputed, we conclude that the district court’s factual findings were not clearly erroneous, and that its misapplication of the standard of review does not … Continue reading
Defendant’s arrest in a motel room resulted in a plain view of a distinctive sneaker that was probably worn in a robbery. That supported a search warrant. Defendant’s protective sweep argument wasn’t timely raised, but it would lose anyway because … Continue reading
W.D.Mo.: That later police reports would shed more light on affidavit for SW, that’s not a Franks issue
Affidavits for search warrants are presumed to be accurate under Franks, and that’s why the defense has to make a substantial preliminary showing of falsity. Alleging merely that other more timely reports would shed light on the subject is not … Continue reading
Articulable suspicion not needed to run a license plate. United States v. Thompson, 2020 U.S. Dist. LEXIS 154156 (D. Mont. Aug. 24, 2020). Defense counsel wasn’t ineffective for not moving to suppress alleged overseizure of a doctor’s patient records where … Continue reading
TX7: Trial court’s initially misstating burden of proof was on def was corrected in the ultimate findings
The trial court first stated that the burden on consent was on the defendant, but the ultimate findings of fact and conclusions of law concluded that the state proved it by sufficient evidence. This corrected the previous mistake, and the … Continue reading
OH6: Def’s neighbor was citizen informant in reporting seeing him looking at CP through an open window
Defendant’s neighbor could see him from his house masturbating to child pornography. He called the police and the police corroborated it but walked on the curtilage, too. The neighbor was shown as a confidential informant but was really a citizen … Continue reading
“Because the totality of the circumstances, including the smell of burnt marijuana and Kizart’s reaction and behavior when Russell asked Kizart about the trunk, provided probable cause to search his car’s trunk, we Affirm the denial of the motion to … Continue reading
Defendant was arrested in his house on a cold and dreary day. He answered the door in his underwear. Officers were permitted to conduct a protective sweep before getting his clothing for transport because at least one other person expected … Continue reading
D.D.C.: No REP in apt building laundry room when officer saw def in possession; take down when he resisted was reasonable
“In short, and as explained below, the Court finds that Leake’s stance in the corner of the laundry room was suspicious, and that upon approaching him, Officer Pantaleon observed Leake holding a small clear plastic baggie containing a powder-like substance. … Continue reading
“Approximately twenty minutes after Jacobs fled on foot, the police noticed Gilmore driving away from the neighborhood where the robbery occurred. At the time of the stop, Gilmore’s car was the only car on the road. Once the stop lawfully … Continue reading
On this record, the second Tasing of plaintiff could be found unreasonable for lack of resistance, which the jury did. Jones v. Treubig, 2020 U.S. App. LEXIS 19883 (2d Cir. June 26, 2020). The search under defendant’s consent for “firearms/evidence” … Continue reading
OH9: Def’s observed association with wanted fugitive permitted his seizure at time of fugitive’s arrest, too.
Defendant was in a car wash and the USM fugitive task force was tailing a person in another car at the car wash. That person came over to defendant’s car and spoke to him. When the person being surveilled started … Continue reading
Because of legalization of recreational marijuana in California: “In summary, the facts in this case comprised of a parked car missing a registration tag and having an expired registration, the odor of marijuana emanating from the car, the observation of … Continue reading