- W.D.Wash.: RS present for protective weapons search of car under Long
- S.D.Fla.: Consent to giving up passwords at border irrelevant since CBP can search anyway
- OK: Even if protective sweep was pretextual, the case parallels McArthur and there was PC for warrant without it
- AZ: Trial court didn’t make finding on Strickland IAC prejudice for failure to argue curtilage; remanded
- UT: The fact an electronic warrant application is acted on quickly doesn’t mean reviewing court should be “skeptical” of PC finding
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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: Scope of search
WV: Search of def on the premises of a place searched by SW was unreasonable without a showing of his nexus; merely being there isn’t nexus
Search of defendant found on the premises of a search of another person’s property was unreasonable because there was no shown nexus to him and the crime under suspicion. Even the occupants of the property weren’t named in the search … Continue reading
The government got consent to search a package for drugs. That consent did not include cutting a candle in half to find the drugs. Consent to search doesn’t include destruction of property. United States v. Swenton, 2018 U.S. Dist. LEXIS … Continue reading
M.D.Tenn.: While def’s search under “all persons” clause of SW was unreasonable, he was still subject to Terry detenion
A search of defendant under an “all persons” clause in a warrant was unreasonable. Still, however, the officers had reasonable suspicion to detain him. His admission then was that he had a gun, and that led to a frisk. “Giving … Continue reading
A parked RV qualified as a “vehicle on the premises” even though it would have taken 30 minutes to make it ready to move. It had a satellite dish on the roof and it was connected to water and electricity. … Continue reading
DE: “The scope of the warrant so far outruns that probable cause finding—and is so lacking in particularity relative to that probable cause finding—that it qualifies as plain error.”
A rare outcome: “The scope of the warrant so far outruns that probable cause finding—and is so lacking in particularity relative to that probable cause finding—that it qualifies as plain error.” Buckham v. State, 2018 Del. LEXIS 166 (Apr. 18, … Continue reading
In a search warrant for financial fraud of defendant’s house, finding defendant there allowed a search of his wallet under the warrant. United States v. Shabazz, 2018 U.S. App. LEXIS 9774 (11th Cir. Apr. 18, 2018):
No, the attorney-client privilege isn’t dead, and neither is the crime fraud exception. ABAJ: How will prosecutors handle privileged documents from Michael Cohen raids? by Stephanie Francis Ward:
The search warrant in this case did not authorize a search of a vehicle that arrived at the premises during the search. There was, however, independent probable cause for a search of the vehicle under the automobile exception. United States … Continue reading
The defendant raised attorney-client privilege against the seizure of emails to lawyers and then CPAs retained by his tax lawyers. The former was determined to be waived. The latter, however, remained privileged. United States v. Adams, 2018 U.S. Dist. LEXIS … Continue reading
AK: SW clause to “search any persons” here didn’t enable search of every person who came to the premises during the search
Defendant came to a Fairbanks house when a search warrant was being executed, and he was searched, too, under the auspices of the “search any persons” present reference in the warrant. Defendant’s search was unreasonable under the circumstances. Innocent persons … Continue reading
Defendant’s car was subject to the automobile exception because it was mobile, despite being parked and not running. “The scope of the warrantless search of an automobile is not defined by the nature of the container in which the contraband … Continue reading
W.D.Pa.: SW for premises for “other evidence of distribution” of drugs permitted search of def’s pockets
The search warrant was for “drugs, drug paraphernalia, owe sheets, cell phones, firearms, stolen merchandise, or other evidence of distribution of a controlled substance.” That permits a search of defendant’s pockets, and the cash found there was subject to potential … Continue reading