- CA6: SW with wrong address and color of building was still particular enough in location
- CA9: Changing allegedly offending officer in Franks challenge on appeal was waiver
- CA6: State court’s failure to remand for more factfinding was still a “full and fair opportunity to litigate” his 4A claim
- TX: Totality of affidavit justified on totality SW for surveillance videos even though affidavit didn’t explicitly say so
- E.D.Tenn.: Def doesn’t even attempt a Franks offer of proof and it fails
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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: Inevitable discovery
Pleading that defendants used false information to get a search warrant for them. That was enough to get around qualified immunity, and the district court erred in dismissing at this stage. Marvaso v. Sanchez, 2020 U.S. App. LEXIS 26723 (6th … Continue reading
MA: When seizing digital devices under SW, looking at camera pictures didn’t require exclusion where not mentioned in SW for camera
During a search of defendant’s house under a warrant that included seizing digital devices, the officer turned on a camera and scrolled through the pictures. When the warrant was sought for the camera, no mention was made, and inevitable discovery … 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
The court does not have to decide whether changing the settings on defendant’s cell phone prior to obtaining a search warrant for it was a search. The later issuance of a search warrant for the phone moots that point because … Continue reading
On the totality, the finding of an arrest warrant curing an allegedly illegal stop favors the state on application of the exclusionary rule under Strieff. “Because the connection between Mousseaux’s detention and the subsequent search incident to her arrest was … Continue reading
A Franks hearing wasn’t required because the court finds that, even if Franks could be satisfied here, the evidence was inevitably found. United States v. Chapline, 2020 U.S. Dist. LEXIS 104509 (W.D. N.Y. June 12, 2020). It was reasonable to … Continue reading
Defendant challenges the lack of nexus of his alleged conduct to the premises, but it doesn’t matter because the good faith exception applies. United States v. Novak, 2020 U.S. App. LEXIS 17133 (6th Cir. May 29, 2020). Inconsistent and implausible … Continue reading
TN: DNA sample was subject to inevitable discovery where def was subjected to another one for a homicide two years later
Defense counsel wasn’t ineffective for not objecting to a DNA sample where defendant claimed it exceeded his consent. The post-conviction court found that it didn’t. Moreover, discovery was inevitable because another DNA sample was validly taken two years later as … Continue reading
Flipping off the officer wasn’t disorderly conduct justifying the stop. The community caretaking function also does not apply. State v. Ellis, 2020 N.C. LEXIS 363 (May 1, 2020). The state could not show that defendant’s statements were inevitably discovered from … Continue reading
Defendant’s admission he possessed marijuana in his car was within the normal incidents of the traffic stop, Therefore, the officer could extend the stop under Rodriguez. United States v. Lott, 2020 U.S. App. LEXIS 10237 (6th Cir. Apr. 1, 2020). … Continue reading
Defendant’s motion to suppress was previously denied, but she was allowed to specify what documents were overseized. “[T]he court will consider a motion to suppress specific documents or other evidence based on proof that such items were seized and that … Continue reading
D.N.M.: Search of camper being lived in parked on the street in violation of ordinance was inevitable
The question of standing and alleged illegal search of defendant’s camper were moot. The camper was parked on an Albuquerque city street where it’s illegal to live in a camper. Given those facts, the camper would have otherwise been inventoried, … Continue reading
Defendant consented to a search of his car and his hotel room, but not to a search of his guitar case in the room. Thinking there might be drugs there, the officer seized the guitar case to preserve the potential … Continue reading
W.D.N.Y.: Getting def to unlock his phone wasn’t unreasonable because the SIM card would have been forensically searched later anyway
It was reasonable for POs to search defendant’s unapproved cell phone without a search warrant as a probation search. Making him use his face or get the password to unlock the phone was not unreasonable because the contents of the … Continue reading
CA2: SI of backpack for a subway fare violation was unreasonable, but a search was inevitable as inventory
Defendant was arrested by NYPD for using a student fare MetroCard, and a computer search showed he was a transit recidivist. His backpack was searched. While it was an invalid search incident, he was taken to the precinct house and … Continue reading