- TX1: Voluntariness of consent shown by officers’ efforts to insure def understood what they were asking
- WA: Request for proof of payment of a bus fare is not a search
- S.D.Fla.: PC for constructive possession shown; def doesn’t have to handle firearm in video
- E.D.Tenn.: You post to Facebook at your peril; there is no REP in Facebook “friends”
- N.D.Okla.: Motion to suppress must allege basis to overcome GFE, too
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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: June 2018
SCOTUS: Too many facts in dispute to grant QI dismissal on a claim of interference with right to pray after entry into the house; 4A claim revived after being waived
This pro se plaintiff alleged police came into her house for a complaint of her radio being too loud, and she was told to stop praying. The district court dismissed her First and Fourth Amendment claims for failure to state … Continue reading
NM: State’s DNA collection act const’l under King; def has no interest in whether his DNA might end up tested against a cold case was lawfully collected
The state has an interest in collecting DNA from arrestees, and King is followed. Defendant doesn’t make any credible argument why the state constitution should be applied except that he shouldn’t have his DNA compared to that on file from … Continue reading
DE: PC and nexus to search def’s house came from his leaving to do a drug deal on a bicycle and then coming right back
There was probable cause and nexus to search defendant’s house because he left the house on a bicycle to conduct a drug delivery and returned. Spencer v. State, 2018 Del. LEXIS 296 (June 26, 2018). There was probable cause to … Continue reading
The Franks doctrine, Franks v. Delaware, 438 U.S. 154 (1978), turned 40 on Tuesday. I missed it.
WaPo: Facial recognition technology is finally more accurate in identifying people of color. Could that be used against immigrants?
WaPo: Facial recognition technology is finally more accurate in identifying people of color. Could that be used against immigrants? by Drew Harwell:
WaPo: The Watch’ Blog: The ongoing problem of conveniently malfunctioning police cameras by Radley Balko: When cops aren’t punished for not using or misusing their body and dash cameras, the cameras are worse than useless.
Federal agents showed up at defendant’s house with a search warrant for records. They asked if he had other records elsewhere. He lied and said no. He left the house, went to a hardware store to buy boltcutters, and he … Continue reading
Defendant did not have a reasonable expectation of privacy in the data from his vehicle’s airbag control module, because, while an outside observer cannot ascertain the information regarding the use and function of a vehicle with the same precision, a … Continue reading
GA: Def’s cell phone was seized and downloaded w/o a warrant, but the download wasn’t searched until a SW was obtained; search valid under independent source
Defendant’s cell phone was seized and downloaded, but the download wasn’t searched without a search warrant. The court doesn’t even have to decide whether exigent circumstances permitted the download because the police had seized it lawfully and they have plenty … Continue reading
IN: A reasonable person in def’s position would not have felt detained and could have asked for his partially blocked car to be let out
The officer was inquiring of suspicious persons but did not yet have reasonable suspicion. Defendant’s car was partially blocked in, and the inquiries weren’t directed at him. A reasonable person in his position would have felt he could have asked … Continue reading
E.D.Pa.: Warrantless admin seizure of taxicabs for lack of proper permit violates 4A and due process
Warrantless administrative seizure of taxicabs without a proper PPA TLD sticker violates the Fourth Amendment and due process for denial of a predeprivation hearing. Rosemont Taxicab Co. v. Phila. Parking Auth., 2018 U.S. Dist. LEXIS 106322 (E.D. Pa. June 26, … Continue reading
W.D.Mo.: Unaccounted for gun and likely presence of another inside was exigency for entry to look for it
Defendant was arrested outside his house, and a firearm expected to be on him was not found during his search incident. There was expected to be another person in the house, and that, coupled with the unaccounted for gun, was … Continue reading
Defendant’s traffic stop was unreasonable because there was no objective, let alone good faith, basis for the stop. There were conflicting traffic signs at the intersection, but they didn’t apply to appellant in his lane. Also, the state could not … Continue reading
Wired: Anthony Kennedy’s Retirement May Have Huge Consequences for Privacy by Louise Matsakis:
Slate: What’s Next for the Reasonable Expectation of Privacy? by Mike Godwin: The Supreme Court’s ruling in Carpenter raises new questions.
The Crime Report: Has High Court Privacy Ruling ‘Future-Proofed’ the Fourth Amendment? by TCR Staff:
Vox: The latest Supreme Court decision is being hailed as a big victory for digital privacy. It’s not.
Important article: Vox: The latest Supreme Court decision is being hailed as a big victory for digital privacy. It’s not. by Aziz Huq: Carpenter forces police to get a warrant before getting some cellphone data. But other Fourth Amendment cases … Continue reading
CA2: Nonmaterial error of fact in Title III application and SW for house didn’t merit Franks hearing
Nonmaterial error in inclusion of an erroneous fact in a wiretap application and search request for house didn’t require a Franks hearing. United States v. Osborne, 2018 U.S. App. LEXIS 17142 (2d Cir. June 25, 2018).* Defendant’s post-conviction claim defense … Continue reading
Defendant’s motion for return of property was facially sufficient for a hearing, and the circuit court erred in denying it without a hearing. Peterson v. State, 2018 Fla. App. LEXIS 8861 (Fla. 5th DCA June 22, 2018). Defense counsel wasn’t … Continue reading