- W.D.Pa.: Generic motion to suppress denied
- D.N.M.: Detention hearing argument that there were “dispositive” 4A issues goes nowhere
- CA9: Inaccuracies in SW’s place to be searched didn’t misdirect officers; QI applies
- M.D.Pa.: Franks hearing denied for speculation on what video evidence might show
- AR: One can’t change 4A argument from trial court to appeal
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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: Subpoenas / Nat’l Security Letters
CT: Police knowledge def’s cell phone was used to communicate with co-conspirators and victim was justification for seizure then SW
There were exigent circumstances for seizure of defendant’s cell phone incident to his arrest and probable cause for a search warrant to search it. The police developed information that the conspirators communicated with the victim by phone before the crime. … Continue reading
A demand for records from the federal government doesn’t state a claim under Washington state law when plaintiff grudgingly gave up the records. Daviscourt v. United States, 2020 U.S. Dist. LEXIS 246610 (W.D. Wash. Dec. 10, 2020)*:
The IRS summons was upheld. “[E]ven if the notebooks were unlawfully seized, the Fourth Amendment’s exclusionary rule does not render the summonses unenforceable. First, even if the exclusionary rule applied, evidence may not be excluded when it is obtained based … Continue reading
The AG subpoenaed jail calls, which defendant concedes could be recorded and that he had no privacy in. His argument here is whether there was a “substantial governmental interest in obtaining the prison phone records.” The state counters that they … Continue reading
CA10: Def’s flight into house to avoid arrest justified police entry because of exigency and hot pursuit
Police initiated arresting defendant outside his home, and he fled into his house to avoid it. The warrantless entry into his home was justified by probable cause for the arrest and exigent circumstances of both destruction of evidence and hot … Continue reading
An EPA subpoena to determine whether this mine could pay for the cost of a cleanup was within the agency’s jurisdiction and valid and did not violate the Fourth Amendment. United States v. United Park City Mines Co., 2020 U.S. … Continue reading
“In light of the above, the Court agrees with Defendants that post-indictment, heath care administrative subpoenas that seek information that may be relevant to pending charges may not be directed towards a criminal defendant. As discussed above, Phibbs does not … Continue reading
The Appeal: NYPD Expands Use Of Controversial Subpoenas To Criminal Cases by Ali Winston (“Administrative subpoenas—which do not require a judge’s approval—are typically used for the department’s internal investigations, but The Appeal has learned that they are being used in … Continue reading
Cal.: Defense SDT for Facebook account of shooting victim remanded for reconsideration under standards of state constitution of victim’s privacy rights
In a California specific holding, a criminal defense subpoena to Facebook for a shooting victim’s Facebook account (private and public) made enough of a sufficient showing of necessity to get a remand for consideration of the factors that justify intrusion … Continue reading
A forthwith subpoena duces tecum to gather medical records in a doctor’s office by the Texas Medical Board with the DEA in tow appears to state a Fourth Amendment claim here for the subpoena being used for criminal investigative purposes, … Continue reading
The defendant in a sex case sought a subpoena duces tecum for the alleged victim’s cell phone. The state responded that the Fourth Amendment requires probable cause and an order. The court declines to find that the Fourth Amendment applies … Continue reading
A subpoena duces tecum from the State Escheator is subject to Fourth Amendment reasonableness. “The resulting legal framework for enforcing an administrative subpoena involves a shifting burden of proof. The agency has the initial burden of showing that its subpoena … Continue reading
The subpoena for records here was reasonable, and there was no reasonable expectation of privacy in them where the court could analogize the subpoena as a search. State v. Doyle, 2020 R.I. LEXIS 65 (July 8, 2020):
“It is undisputed that urinalysis testing is a search under the Fourth Amendment and that drug testing in the prison context is generally constitutional unless it is conducted in an unreasonable manner. See Thompson v. Souza, 111 F.3d 694, 701 … Continue reading
ABAJ: County subpoenas partygoers who didn’t cooperate in COVID-19 contact tracing by Debra Cassens Weiss
“There is no shortage of reasons to reject Byers’s argument. But her argument, we acknowledge, has intuitive appeal—‘Shouldn’t the government have to give a reason why it wants my information?’—and merits this fulsome response. In all, Byers has raised a … Continue reading
Forbes: Quorum-tine: How COVID-19 Affects the Validity of Federal Grand Jury Document Subpoenas by Brian Jacobs (“Since COVID-19 began to spread across the United States, federal grand juries in districts around the country have stopped meeting, but prosecutors have continued … Continue reading
Defendant was stopped because the Utah Criminal Justice Information System querying the Insure-Rite database showed he had no car insurance. Once stopped, he admitted he didn’t have a DL either. Then, outstanding warrants were found. Defendant’s claim the Insure-Rite database … Continue reading
Defendant was stopped in a shopping center parking lot for suspicion of shoplifting a sweatshirt. He consented to a frisk of his person and car, and nothing was found. Another officer arrived, and he was de facto arrested. A search … Continue reading
The DEA’s subpoena to the Board of Pharmacy for controlled substances prescriptions for two pharmacies was reasonable and within the DEA’s jurisdiction. It is enforced. United States DOJ v. Colorado Bd. of Pharmacy, 2020 U.S. Dist. LEXIS 69726 (D. Colo. … Continue reading