- TN: “Process” in a child exploitation statute does not include SWs; legislature could have added SWs if it intended that
- NY3: Judge who signs SW doesn’t have to recuse from suppression hearing
- LA5: Car in driveway near the street wasn’t on the curtilage
- CA5: 4A IAC for not challenging search doesn’t avoid deportation
- TX3: Littering supports a stop
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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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Daily Archives: March 8, 2019
MA applies “foregone conclusion” test to determine def could be compelled to provide password for cell phone
Massachusetts applies the “foregone conclusion” test to whether forcing defendant to enter the password on his cell phone to search it violates the Fifth Amendment. The court concludes that defendant’s possession of the phone and admission it was his and … Continue reading
The state did not satisfy the foregone conclusion test to get access to defendant’s password on his cell phone. People v. Spicer, 2019 Ill. App. LEXIS 129, 2019 Ill. App. LEXIS 129 (Mar. 7, 2019):
It wasn’t ineffective assistance for defense counsel to not have filed a motion to suppress 2014 CSLI. United States v. Littles, 2019 U.S. Dist. LEXIS 34359 (E.D. Mich. Mar. 5, 2019).* In this 2255, defense counsel was not shown to … Continue reading
The state concedes that one flashing his high beams for one second twice 14 seconds apart at a vehicle in front of him for not moving is not a violation of the statute for unnecessarily driving on high beams. Nevertheless, … Continue reading
The premises for a search warrant includes the curtilage, and drugs found hidden outside the house on the curtilage just a few feet from the house were properly seized. United States v. Dowling, 2019 U.S. Dist. LEXIS 34956 (D. V.I. … Continue reading
D.Ore.: Seizing house title records from house officers already had copies of wasn’t overbroad; it shows control
The search warrant was not overbroad because officers seized title records on the property that they already apparently had copies of. It shows control. United States v. Cramer, 2019 U.S. Dist. LEXIS 34959 (D. Ore. Mar. 5, 2019). There is … Continue reading
The stop, as told to defendant, was for a traffic violation, but there was reasonable suspicion for drug trafficking considering all that the officers knew. Therefore, using a drug dog was reasonable because a drug investigation was legally supported. Use … Continue reading
N.D.N.Y.: Even if def accused drug dealer’s alleged cover business was omitted from affidavit, there still was PC
The officers lack of complete detail to fully explain defendant’s version that he might have had a lawful explanation for what he was doing doesn’t rise to the high bar of a Franks violation. In addition, it’s not uncommon for … Continue reading
The government’s pre-Carpenter search warrant for CSLI was issued without probable cause, but it wasn’t so deficient that the good faith exception should not apply. United States v. Elmore, 2019 U.S. App. LEXIS 6507 (9th Cir. Mar. 4, 2019):