- M.D.Tenn.: Harassment of a parolee as reason for exclusion has to come from something other than the alleged const’l violation
- E.D.Mich.: A state DMV database that is 90-95% accurate on insurance records is close enough for RS
- E.D.Wash.: No REP in an ISP’s mere subscriber records
- N.D.Cal.: Subpoena for phone records not shown to be from independent source
- S.D.Cal.: NCIS obtained def’s phone passcode by 4A violation
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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: Military searches
The question of probable cause for defendant’s UA was a close call. Therefore, the good faith exception applies. The officers essentially did everything right and that should be rewarded, and there’s no reason to reverse the finding of probable cause … Continue reading
The military search of defendant’s electronic devices was reasonable and done under a valid search authorization. The fact they were in his room did not prohibit entry to retrieve them. United States v. Basey, 2021 U.S. Dist. LEXIS 70988 (D. … Continue reading
M.R.E. 315 provides for search authorizations, and this one wasn’t an anticipatory warrant with conditions. Oral applications and authorizations are constitutionally proper per United States v. Brown, 784 F.2d 1033, 1036 (10th Cir. 1986). An Air Force regulation on the … Continue reading
The military trial judge erred in concluding that the search authorization required AFOSI complete information to determine probable cause for defendant’s DNA in a sex assault case. It’s not. Just because there were differing versions of how dressed the victim … Continue reading
N.-M.: Broad cellphone search authorization was narrowed to emails and text messages and was particular
The command authorization for a search of defendant’s iPhone was reasonable and limited to files of emails, text messages, and search history as to his extramarital affairs before and after his wife’s death. A video found in an email was … Continue reading
The service member was charged with child pornography offenses. “Appellant moved for an order in limine suppressing all evidence that the Government had found in Appellant’s home pursuant to a command authorization for search and seizure (CASS). The military judge … Continue reading
Oral search warrant requests and authorizations under M.R.E. 315 do not violate the Fourth Amendment or Rule 41. Many cases so hold. The violation of the SOP manual for military magistrates wasn’t serious enough to justify suppression nor prevent the … Continue reading
N-M Ct.Crim.App.: Lack of CO’s actual authority to issue search authorization fatal to search; no GFE
The Court Martial judge erred in concluding that a particular major had authority to authorize searches of appellant’s body, office, and personal property because she was not a “commander” for the purposes of Mil. R. Evid. 315 even though her … Continue reading
In applying the military good faith exception under M.R.E. 311(c)(3), the court finds the NMCCA properly applied the exception which, under rule, blends into probable cause. There clearly was a substantial basis for finding probable cause, and good faith was … Continue reading
Army: Def’s housing was under control of the Ft. Benning Cmdr and the search authorization was valid
The search authorization by the base commander was issued with probable cause. Defendant’s housing in a separate property with Ft. Benning was part of the base and was a sub-property of the Ranger school. The commander’s authority extended to it, … Continue reading
CA4: More than one person can have authority to issue command authorized search under Mil.R.Evid. 315(d)
Defendant was subjected to a command authorized search under Mil.R.Evid. 315(d). He argues that the definition of who is in control to authorize the search isn’t clear. Well, it isn’t, but that doesn’t mean that multiple people might not fit … Continue reading
Appellant was a JAG officer under medical treatment taking drugs, but those drugs interacted with alcohol and led to a DUI and a charge of being drunk on duty. A blood sample was obtained by medical personnel. Her urine, however, … Continue reading
The military judge erred in suppressing the results of a second “reinspection” UA administered as a base protocol after a first UA after an AWOL come up positive, diluted, or inconclusive. It was a reasonable command imposed requirement. United States … Continue reading
E.D.Va.: While def’s Navy commander in CA couldn’t authorize military search on a base in VA, GFE applies
Defendant was in the Navy, and, due to a potential rape allegation against him, a pretext text message was sent to him by NCIS on behalf of the alleged victim. Defendant was stationed in San Diego, but he was in … Continue reading
Defendant was charged in Washington state court with child pornography after he was arrested in a prostitution sting and police obtained access to his cell phone by getting his password. The state court suppressed the search of the cell phone, … Continue reading
A military search warrant for evidence of “attempted sexual abuse of a child, abusive sexual contact with a child and other offenses related” did not include child pornography. When child pornography was found, another warrant was required, and CID didn’t … Continue reading
Plaintiff was a Colonel in the North Carolina Army National Guard stationed in Kuwait, and he claimed that his email was unlawfully searched by another officer and forwarded around in violation of his Fourth Amendment rights. The Feres doctrine, requiring … Continue reading
Defendant’s wife enlisted aid from a family friend at an Air Force base who was in the gate security forces, and he wasn’t a criminal investigator. At the time all this arose, she was there for social purposes. The court … Continue reading