- N.D.Ohio: Alleged ambiguity in whether nighttime search authorized resolved by all the circumstances in favor of it
- S.D.Ohio: GFE overcomes lack of nexus; officer unaware of some facts didn’t commit Franks violation
- S.D.Ohio: Nexus shown to business from alleged drug transactions outside
- MA: No REP in unlocked basement of apt building
- OH12: State’s “reasonable mistake of fact” justification for stop has to be raised in trial court first
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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: Trespass
UT: Def succeeds on claim opening car door can be a 4A search, but loses on Davis good faith reliance on prior case
Police opening the door of defendant’s car on a McDonald’s parking lot where he’d nodded off can be a search. Prior authority permitting it, State v. James, 2000 UT 80, 13 P.3d 576, is now limited. This can be a … Continue reading
Prior case law on inserting a key in a car door is not a search is contrary to Jones and Jardines. As a parole search, however, it can be reasonable if the car is connected to the parolee. United States … Continue reading
The search warrant for taking defendant’s blood included the ability to forensically test it. The fact that the forensic analysis of defendant’s blood occurred at a date beyond the three-day window for execution of the warrant did not render the … Continue reading
D.Mont.: Testing a key in house locks to see if it works was a trespass under Jones and Jardines requiring a SW
Defendant was admitted to a mental hospital after a police call to an erratic person. Because of his apparent mental condition, his backpack was searched by hospital guards. That revealed a knife, a gun, and a house key. ATF was … Continue reading
Warrantless retrieval of data from the airbag control module (ACM) from a vehicle after a car crash was a search that required a warrant. Mobley v. State, 2019 Ga. LEXIS 694 (Oct. 21, 2019).
NJLJ: Editorial: Parking Space ‘Chalking’ Case Raises Questions on Fourth Amendment Jurisprudence: Technology is making universal surveillance of public spaces possible, and the right to be lost in the crowd will not depend on chalk. The real issue is not … Continue reading
AP: Michigan city asks full court to hear parking ticket case by Ed White. The case is posted here and here. The tire chalking case gets a petition for rehearing en banc filed. No case, except maybe Carpenter, was the … Continue reading
The City’s chalking a car tire for a potential parking violation invades the property of the owner of the vehicle and constitutes a search. Taylor v. City of Saginaw, 2019 U.S. App. LEXIS 11586 (6th Cir. Apr. 22, 2019):
The tapping of a suspicious looking tire on a truck was a trespass under Jones and other cases, but the court finds it was with reasonable suspicion and reasonable on the totality. The tapping of the tire revealed that it … Continue reading
Plaintiff is a used car dealer who parked cars on a city owned lot that they were trying to acquire, but it never went through. The cars weren’t removed despite requests, so all 85 were towed off by towing companies … Continue reading
VA: P2P file sharing to access CP wasn’t a trespass on the curtilage; def consented to entry into the computer
The officer’s actions in accessing defendant’s computer files by peer-to-peer file sharing did not constitute a trespass to his curtilage in violation of the Fourth Amendment. Defendant demonstrated his consensual participation in the file sharing community by installing file sharing … Continue reading
Pole camera surveillance of defendant’s house for 21 months didn’t violate Fourth Amendment. He had a subjective reasonable expectation privacy, but it’s not one that society is prepared to recognize as reasonable. The court traces Katz to Jardines, and concludes … Continue reading
WI holds that defendant as entitled to a self-defense instruction when he encountered two game officers on his property and thought they were trespassers. The concurring opinion concentrates on the intrusion into “open fields” and whether the state can treat … Continue reading
Predawn (4 am in one case, 5:30 am in other) knock-and-talk was a trespass and violated social norms under Jardines. Implied license to enter the curtilage is time sensitive. People v. Frederick, 2017 Mich. LEXIS 1113 (June 1, 2017):
OR: Here, “the ‘Private Drive’ and ‘No Trespassing’ signs did not objectively manifest an intention to prohibit public access”
“Thus, when viewed together, the ‘Private Drive’ and ‘No Trespassing’ signs did not objectively manifest an intention to prohibit public access to Lowe Road, particularly in the absence of other barriers to entry, such as fences, gates, or signs clearly … Continue reading
E.D.La.: Swabbing car door handle for DNA without a SW is a trespass to chattels and barred by Jones
Swabbing a car door handle for DNA was a trespass against the plaintiff’s vehicle under Jones. A trespass to land is governed by the Fourth Amendment under Jardines and trespass to chattels is under Jones. Damage doesn’t have to occur … Continue reading