- OH5: Exigency for blood draw from accident at 1:30 am and hospitalization
- D.Kan.: After entry to arrest parole absconder, the govt could rely on protective sweep, plain view, and plain smell doctrines to expand the entry
- E.D.Mich.: It’s not prosecutorial misconduct to present evidence allegedly unlawfully seized to a GJ
- techdirt: Appeals Court: Handcuffing A Compliant Ten-Year-Old Is Unreasonable But Deputy Had No Way Of Knowing That
- S.D.Ohio: Affidavit for SW judicially estopped govt to claim no standing
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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: Particularity
The state here failed to show nexus between defendant’s cell phone and a shooting incident. In addition, the search warrant lacked all particularity — it sought to search three cell phones for data and calls without time limit or scope. … Continue reading
In complex cases, the particularly requirement has to be flexible enough to accommodate the substantial amount of information that will be sought and obtained. These two warrants, from 2011 and 2014, were constitutionally particular. United States v. Devos Ltd., 2017 … Continue reading
M.D.Ala.: Omission of city and county from address in SW wasn’t fatal where place to be searched was still apparent
The fact the affidavit had the address but no city and county doesn’t violate the particularity requirement. Yes, it would have been better to have done so, but the officers still could find the place they were looking for, so … Continue reading
Defendant was accused of unlawfully trafficking in human body parts, and the search warrant for his premises for body parts was not a general warrant. United States v. Rathburn, 2016 U.S. Dist. LEXIS 140562 (E.D.Mich. Oct. 11, 2016). [It seems … Continue reading
D.Kan.: USMJ’s email warrant denial for lack of PC affirmed, but gov’t can reapply because it has more info
The USMJ’s decision that the email search warrant didn’t show probable cause is not reversed, but it was sufficiently particular. The government can reapply again because it says it has additional information. Courts must balance privacy and the government’s ability … Continue reading
MO: SW for first structure on left was particular where the actual first was a hidden building and second was a shed
Defendant claimed that the search warrant wasn’t particular enough because it described defendant’s house as the first structure on the left on private road. Defendant shows that there were two others, but the first wasn’t visible from the road and … Continue reading
OR: Search of computer’s browser history limited to the PC; here, 15 minutes, not two months; a computer is more of a “place to be searched” rather than a “thing to be seized”
Defendant was convicted of murder by child abuse. The only relation of a computer was his admission that he used a computer to search for symptoms when the child was sick 15 minutes before his 911 call. When the computer … Continue reading
N.D.Ga.: Use of an electronic “sniffer” to find a target computer in a college building was particular
Police used an electronic “sniffer” to attempt to find a MAC address of an operating computer in an Emory University building. “The affidavit described the plan to use a sniffer to ‘identify the wireless device associated with the suspect MAC … Continue reading
“Here, the seizure of Fulton’s cell phone during his arrest fell squarely within the exception articulated in Chimel and Robinson as a seizure incident to arrest.” United States v. Fulton, 2016 U.S. Dist. LEXIS 83014 (S.D.Tex. June 23, 2016). The … Continue reading
OH8: SW for “Apt. #1” with white door was valid where there was only one with a white door, albeit No. 3, and officers were directed by color of door
The description of the apartment with the white door on the corner of the building, “Apt. #1,” proved incorrect because Apt. #3 was the only one with a white door. The officers executing the warrant were directed to the one … Continue reading