- PA: SW papers issued by GJ retain secrecy and aren’t open
- OH11: Def’s vehicle and occupants matching description of bank robbery getaway car and suspects was RS
- OH3: Court declines to extend state const to trash searches
- D.Minn.: Older information about drugs confirmed by an ion scan of door knob 72 hours before SW not stale
- NYTimes: Justice Scalia’s Fading Legacy
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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: Rule 41(g) / Return of property
Ct.Claims: Motion to dismiss denied: “plaintiffs sufficiently allege actions which are inconsistent with the exercise of police power”
Plaintiffs alleged a Fifth Amendment taking because the government took their truck to do a drug operation. The claim survives a motion to dismiss. “Because plaintiffs do not challenge the legality of the government’s action, we deny the jurisdictional challenge. … Continue reading
Defendant did not violate the traffic statute that the officer stopped him for. Therefore, Heien’s reasonable mistake of law and good faith doesn’t apply. Moreover, there is no good faith exception in Georgia. Harris v. State, 2018 Ga. App. LEXIS … Continue reading
D.Idaho: Movant failed to show govt had “callous regard” of rights for early return of property seized
The DEA seized unapproved pain relief products by a search warrant, and the company from which it was seized moved for return of the property. The court finds company hasn’t satisfied the requirements for equitable jurisdiction for return of property … Continue reading
Defense counsel isn’t ineffective for not appealing a conviction when the only real remedy he seeks is for return of property which would be by a Rule 41(g) motion which hasn’t been filed. Dismissed without prejudice. Green v. United States, … Continue reading
D.Kan.: FPD has standing to join in Rule 41(g) litigation to recover illegally recorded attorney jail calls and meetings
The Federal Public Defender has standing to participate in Rule 41(g) litigation to recover the recordings of attorney-client meetings and telephone calls that were recorded at a private prison used as a federal detention center. The government’s concerns over standing … Continue reading
Guam: If no criminal case pending, motion for return of property can be treated as a new civil action
If a criminal case is not pending, a motion for return of property is treated as a new civil action, and should proceed accordingly (following state and federal cases, most recently Pristine Pre-Owned Auto, Inc. v. Courrier, 236 W. Va. … Continue reading
D.Me.: SW for jail cell produced evidence; USAO ordered to return some stuff, but sheriff not because USAO can’t be ordered to get it from them
There was a search warrant for personal papers in a jail, and some came into the possession of the USAO but two pages did not. They were needed for litigation. The USAO is ordered to return the copies it has, … Continue reading
For Rule 41(g) motion to return property: “Flemming has failed to prove that he is a ‘person aggrieved by an unlawful search and seizure.’ In his motion, Flemming does not challenge the legality of the search and seizure in question. … Continue reading
M.D.La.: Bench warrant surfacing for def made pat down legal by inevitable discovery even if frisk invalid
Officers responded to a wellness check and found two people passed out in a car. One couldn’t be roused, but defendant could and he was removed from the car and patted down for officer safety. The patdown was reasonable. Even … Continue reading
The doctrine of laches applies to Rule 41(g) motions for return of property. The seizure of defendant’s property was 2003. Aside from other difficulties (like forfeiture), defendant just waited too long. United States v. Kimball, 2017 U.S. Dist. LEXIS 136952 … Continue reading
Defendant failed to make a showing for equitable relief for return of property under Rule 41(g) while he’s in jail. United States v. Rehaif, 2017 U.S. Dist. LEXIS 61019 (M.D. Fla. April 4, 2017):
In a juvenile proceeding, recovery of the juvenile’s cell phone required following a statutory procedure which wasn’t. One can’t just apply to the court first. The further claim that retention of the phone violated the Fourth Amendment wasn’t raised below … Continue reading