- E.D.Pa.: Use of flashlight on backseat of car at night not a search
- OH5: Dog was called two minutes into stop of RV and it didn’t prolong the stop
- M.D.Fla.: No 4A protection for non-citizen stopped by CG at sea
- E.D.N.C.: When there is RS, officers do not need to rule out innocent explanations
- WV: Emergency order of protection was not functional equivalent of SW for entry into home
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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: January 2019
AR: Isolated comment at trial from police witness defendant wouldn’t give up cell phone password didn’t require reversal; jury admonished on right not to
An isolated trial comment from a witness that the officer couldn’t access a cell phone without the password wasn’t prejudicial. Also, the parties agreed that an admonition that defendant had a constitutional right to not give it was given. Lewis … Continue reading
The search warrant reasonably authorized seizure of defendant’s cell phone but not its search. The nine day delay in getting the search warrant for the phone was not unreasonable. The court declines to adopt a bright line rule and goes … Continue reading
CA6: No showing insurance company’s investigative report was cause of his arrest; also didn’t plead state action
Plaintiff sued his insurance company for participating in his false arrest because they submitted their own investigative file to law enforcement. There is no evidence that law enforcement didn’t conduct its own independent analysis of what they received. In addition, … Continue reading
Plaintiff was subjected to a parole search, and he contended New York law applied rather than Samson et al. The officer gets qualified immunity on the question because it appears Samson should but we don’t even need to resolve it. … Continue reading
“In this case, the defendant has not attempted to make any preliminary showing that the information contained in the application/affidavit was knowingly or recklessly false. The closest he comes to doing so is the assertion that the application/affidavit avers that … Continue reading
N.D.Tex.: 2254 habeas 4A IAC claim denied; state court applied right rules and finding not objectively unreasonable
Defendant’s federal habeas is denied on his claim of ineffective assistance of counsel as to his search. “The state court applied the proper legal standard and, deferring to the state court’s factual findings, including the court’s credibility determinations, the court’s … Continue reading
Defendant had no right to a warning before he fled from police when he was stopped. “Here, as a practical matter, it is not all clear that police had a reasonable opportunity to issue Dunham verbal commands directing his movement. … Continue reading
N.D.Ind.: Halfway litigating a motion to suppress in state court is collateral estoppel to later suit
Defendant first litigated his suppression issue in state court and lost. He didn’t appeal, and it became final. That’s collateral estoppel to a civil case over the same search. Freeman v. Indiana, 2019 U.S. Dist. LEXIS 13863 (N.D. Ind. Jan. … Continue reading
Defendant’s vehicle was factually connected to a shooting incident, and that gave probable cause to search it under the automobile exception. There was nexus to defendant’s cell phones found in the vehicle to get a separate search warrant for them. … Continue reading
Defendant’s Franks challenge to the search warrant wasn’t specific and was actually a mere “complain[t]” without an offer of proof, and that’s just not enough. United States v. Yackel, 2019 U.S. Dist. LEXIS 12819 (D. Minn. Jan. 28, 2019)*:
NYT: iPhone FaceTime Bug That Allows Spying Was Flagged to Apple Over a Week Ago by Nicole Perlroth: SAN FRANCISCO — On Jan. 19, Grant Thompson, a 14-year-old in Arizona, made an unexpected discovery: Using FaceTime, Apple’s video chatting software, … Continue reading
The exclusionary rule does not apply to revocation of federal supervised release, applying Pennsylvania Board of Probation and Parole v. Scott, 524 U.S. 357 (1998). United States v. Phillips, 2019 U.S. App. LEXIS 2799 (7th Cir. Jan. 28, 2019). CSLI … Continue reading
E.D.Ky.: Disagreement with some of the facts of the alleged PC doesn’t undermine it; it might be relevant at trial
Defendant’s disagreement with some of the facts that led to his arrest didn’t undermine the probable cause and search incident. They may be relevant at trial, but probable cause still exists. United States v. Hawkins, 2019 U.S. Dist. LEXIS 12033 … Continue reading
OR: In a DUII stop, a request for consent to search is not reasonably related to the basis for the stop; it unreasonably extended it
In a DUII stop, a request for consent to search is not reasonably related to the basis for the stop and it unreasonably extended it. State v. Rondeau, 295 Or. App. 769, 2019 Ore. App. LEXIS 123 (Jan. 24, 2019). … Continue reading
“The existence of probable cause in this case presents a close question. We need not decide the issue, however, because we conclude that, even assuming probable cause was lacking, the good faith exception applies.” The government was forthright in disclosing … Continue reading
Defendant’s going directly home after several controlled buys as shown by cell phone pings was sufficient to show nexus to his home for a search warrant for drugs. “Probable cause exists in this case because of the continual and ongoing … Continue reading
(1) There were exigent circumstances for pinging defendant’s cell phone based on exigent circumstances as recognized by state statute, and this is implicitly recognized by Carpenter. (2) Failure to file the search warrant papers within 72 hours as required by … Continue reading