- OH11: Specific and articulable facts, including bullet casings in front of house and bullet holes in house, supported an entry an hour later
- D.P.R.: The fact the police statements weren’t the same doesn’t mean there’s a Franks violation or no PC
- NJ: Dash cams videos not “records required to be kept” for FOIA but remanded for whether there is a common law right of access
- WaPo: L.A. begins body-scanning metro riders, with a promise of no ‘anatomical detail’
- AP: Google tracks your movements, like it or not
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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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Monthly Archives: December 2017
Where the crime under investigation is in this district, it doesn’t matter that the search warrant for geolocation data from defendant’s cell phone is located in another district. The government can still get it by search warrant under Rule 41(b) … Continue reading
The issue of scope of a consent search has to be presented to the trial court to be preserved. This wasn’t. United States v. Vargas, 2017 U.S. App. LEXIS 26869 (10th Cir. Dec. 28, 2017). There is no right to … Continue reading
Defendant fails in his Franks argument for a failure of an offer of proof. Merely conclusorily stating the issue isn’t enough. There has to be context and how it was knowingly false. United States v. Martin, 2017 U.S. Dist. LEXIS … Continue reading
An anonymous caller said defendant was smoking marijuana on his car. This was reasonable suspicion at best. Assuming the smell of marijuana provides probable cause to search, the search was for marijuana, and inspecting credit cards unreasonably expanded the search. … Continue reading
ID: Failure to repeat “computer” in SW for things to be seized wasn’t a violation of 4A; CA7 typo in LPN can be overlooked
The preamble of the search warrant listed a bunch of digital things to search for and seize but the specific search clause didn’t include “computer.” The search warrant as a whole included computers, and defense counsel wasn’t ineffective for not … Continue reading
PBT is a search subject to the Fourth Amendment. State v. Robinson, 2017 Kan. App. LEXIS 89 (Dec. 22, 2017):
OH10: State law requirement of preserving additional testimony to get SW not violation of 4A; complete failure of PC means no GFE; the state has no 4A rights
Prior holding on complete failure of probable cause wasn’t cross-appealed by the state and remains law of the case. Ohio’s Rule 41 that includes that additional testimony besides the affidavit has to be transcribed and made part of the record … Continue reading
D.Kan.: Driving unlicensed vehicle not ground for search under search incident or automobile exception
Driving an allegedly unlicensed vehicle doesn’t support a search incident for paperwork on the vehicle. The automobile exception didn’t support a search either because there was no probable cause. After defendant was handcuffed and away from the vehicle, a Long … Continue reading
WaPo: A police officer fatally shot a man while responding to an emergency call now called a ‘swatting’ prank
WaPo: A police officer fatally shot a man while responding to an emergency call now called a ‘swatting’ prank by Eli Rosenberg and Herman Wong
NYLJ: Admissibility of Expert Testimony on Police Use of Force by Martin A. Schwartz:
WA: Shareholder or officer of closely held corp has no personal privacy interest in corporate records under state constitution
“Paul Chase, shareholder and principal officer of Red Leaf Construction Inc., appeals the trial court’s partial denial of his motion to suppress Red Leaf’s bank records. A commissioner of this court granted discretionary review. We consider, as a matter of … Continue reading
NY4: Frisk for a parking violation was unreasonable; just because def going in back of police car not good enough
Defendant was frisked without an articulable safety justification for a parking violation, and it was based on the fact the officer was putting defendant in the back of the patrol car. That’s not good enough. Also, the search of defendant’s … Continue reading