- E.D.Wis.: Clerical error in attaching wrong SW to affidavit where there were more than one for def could be corrected
- D.N.J.: “The goal is a difficult one to achieve because Franks is narrow in its scope and miserly in the relief it offers.”
- OH11: Trial court’s order denying unsealing SW affidavit in post-conviction case wasn’t final and appealable
- D.Conn.: Despite delay in seeking SW for electronics, on balance, warrant shall issue
- NY4: No REP in a handgun placed under car bumper in driveway at sidewalk visible from off the property
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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: Search
“Because opening the car door and leaning into the car constituted an unlawful search under the Fourth Amendment, the panel considered what remedy is appropriate in this case. The panel held that the exclusionary rule applies to the loaded handgun … Continue reading
“R.F. appeals the denial of his motion to suppress physical evidence. Because we conclude appellant was not seized for Fourth Amendment purposes where the deputy used a spotlight and a flashlight to illuminate his approach of appellant, we affirm the … Continue reading
N.D.Miss.: In wrongful death action, officer’s subjective intent offered by 404(b) evidence is inadmissible; reasonableness is objective
Because the reasonableness standard is based on objective evidence confronting the officer, the use of 404(b) evidence here would be too extraneous to show subjective intent. “Because reasonableness under the Fourth Amendment is disconnected from an officer’s subjective intent, the … Continue reading
Failure to get a ruling on a search claim in the trial court is waiver of the issue for appeal. People v. Collins, 2020 NY Slip Op 04517, 2020 N.Y. App. Div. LEXIS 4610 (1st Dept. Aug. 13, 2020). Drug … Continue reading
A field test of drugs seized off defendant’s person finding them presumptively methamphetamine is reasonable under the Fourth Amendment and the state constitution. There is no enlarged reasonable expectation of privacy as to them when seized. State v. Funkhouser, 2020 … Continue reading
W.D.Wash.: Powering on a cell phone to look at the lock screen was a search intruding on defendant’s reasonable expectation of privacy
Powering on a cell phone to look at the lock screen was a search intruding on defendant’s reasonable expectation of privacy. United States v. Sam, 2020 U.S. Dist. LEXIS 87143 (W.D. Wash. May 18, 2020):
“The fact that Detective Nance searched portions of the vehicle more than once did not violate the Fourth Amendment.” Mendoza v. United States, 2020 U.S. Dist. LEXIS 68469 (E.D. Tex. Apr. 20, 2020). The exclusionary rule does not apply in … Continue reading
County of Riverside v. McLaughlin’s 48 hour rule does not apply to parole holds. Benson v. Chappell, 2020 U.S. App. LEXIS 14035 (9th Cir. May 1, 2020). There was reasonable suspicion for defendant’s stop, but the officer’s opening the car … Continue reading
The estate of a dead man has no Fourth Amendment claim for a search warrant allegedly unreasonably obtained after the death for aggravated assault by the deceased allegedly “‘as a pretext for investigation into [Mr.] Blanchard’s history’ and to ‘besmirch … Continue reading
When defendant got out of the car, the officer could see the butt of a gun sticking from his coat pocket, so a frisk was reasonable for officer safety. Looking at the serial number and then running it to see … Continue reading
E.D.Pa.: Use of a key fob to identify defendant’s vehicle is not a search; it’s commonly available technology under Kyllo
Use of a key fob to identify defendant’ vehicle is not a search invading a reasonable expectation of privacy. United States v. Burgess, 2019 U.S. Dist. LEXIS 206776 (E.D. Pa. Nov. 29, 2019):
State DHS case workers are subject to the Fourth Amendment, and their warrantless entry into defendant’s home was unreasonable. People v. Dyer, 2019 COA 161, 2019 Colo. App. LEXIS 1588 (Oct. 24, 2019). Probable cause for search of a car … Continue reading
“The Probation Department employees’ alleged threat to send Repotski back to jail does not state a constitutional violation cognizable under § 1983. See McFadden v. Lucas, 713 F.2d 143, 146 (5th Cir. 1983) (noting that mere threats do not amount … Continue reading
Officers looked through defendant’s vehicle windows when it was parked with a flashlight during a nighttime stop, and that wasn’t an unreasonable search. In the vehicle was meth in plain view. State v. Brown, 2019-Ohio-3684, 2019 Ohio App. LEXIS 3766 … Continue reading
The officer had an objective basis for the stop, so defendant’s pretext claim fails. The dog sniff occurred almost immediately during the stop and the stop wasn’t prolonged for it. United States v. Martinez, 2019 U.S. Dist. LEXIS 155124 (N.D. … Continue reading
Ordering plaintiff off a parking lot because of suspected trespassing wasn’t a Fourth Amendment seizure. Watkins v. Joy, 2019 U.S. App. LEXIS 22910 (11th Cir. Aug. 1, 2019). X-ray for contraband on an inmate is not a Fourth Amendment claim. … Continue reading