- Lawfare: Implementing Carpenter by Orin Kerr
- FL5: Apparent ongoing animal abuse is an exigency permitting entry onto curtilage
- CA7: State law right of privacy as to another prison inmate isn’t within the 4A
- OH2: CSLI raised first in appeal reply brief isn’t timely; harmless on this record anyway
- W.D.Pa.: Court doesn’t find running away from a wrecked car was unequivocally an abandonment
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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: Cell site location information
Defendant never raised CSLI until his reply brief on appeal after Carpenter came down, and a reply brief is too late. Even if he could have preserved the issue, the evidence was overwhelming and harmless. State v. Kennedy, 2018-Ohio-4997, 2018 … Continue reading
Nine state search warrants were issued for CSLI to attempt to solve nine pharmacy robberies in March-June 2018. Aside from potential standing on questions on some warrants, the search warrants were issued with probable cause and they were particular. Finally, … Continue reading
Defendant raised a Carpenter CSLI issue pretrial, and he prevails. Carpenter held retroactive (despite citing Davis). Dixon v. State, 2018 Tex. App. LEXIS 10340 (Tex. App. – Amarillo Dec. 13, 2018):
Defendant’s verdict was the day Carpenter was decided, and his defense lawyer hadn’t challenged the CSLI before that. Defense lawyers don’t have to forecast changes in the law. “ Even following Carpenter, the Second Circuit has declined to suppress cell … Continue reading
Obtaining defendant’s CSLI six years before Carpenter was lawful, and it doesn’t form a basis for relief now. Osiomwan v. United States, 2018 U.S. Dist. LEXIS 200033 (D. Md. Nov. 27, 2018).* Defendant’s statements to the police were voluntary despite … Continue reading
Police obtained defendant’s CSLI in 2001 by subpoena and without a court order contrary to statute. Defendant argued a search warrant was required. Then Carpenter was decided in 2018 requiring a warrant. The state violated the statute requiring a court … Continue reading
The search warrant was properly issued on affidavit. It didn’t have to be signed in the presence of the judge. An oral affidavit has to be, but this isn’t. State v. Hensley, 2018 Ida. App. LEXIS 49 (Nov. 16, 2018). … Continue reading
Carpenter applies to defendant’s CSLI because his case is still pending despite the fact the CSLI was obtained in 2015. Suppressed. United States v. Beverly, 2018 U.S. Dist. LEXIS 183539 (S.D. Tex. Oct. 26, 2018). Defense counsel wasn’t ineffective for … Continue reading
Defendant is indicted for Hobbs Act robbery, and detectives believed he was in a string of robberies. They obtained ping information on the phone in an attempt to locate him before he committed another robbery. Exigency is shown by the … Continue reading
This case was GVR’d after Carpenter, and the court remands to the district court to make further findings. United States v. Thompson, 2018 U.S. App. LEXIS 29949 (10th Cir. Oct. 24, 2018). Defense counsel can’t be ineffective for not filing … Continue reading
CA6: Seizure of cell phone under SW had to be within time prescribed but the actual off-site search can be later
The seizure of the cell phone was within the time prescribed in the search warrant, but the actual search of the phone didn’t occur until after the time prescribed. This did not violate the Fourth Amendment. Off-site analysis was expected … Continue reading
Once a dog alerted on a car during a stop that was valid up to that time, putting the dog inside the car wasn’t unreasonable. The officers had probable cause at that point. People v. Bailey, 2018 CO 84 (Oct. … Continue reading