- N.D.N.Y.: Mere disagreement with state court 4A determination still bars habeas review
- E.D.N.C.: Removing protective sweep from affidavit for SW still leaves PC
- TN: No right to reconsideration of denial of motion to suppress on transfer to a different trial judge after denial
- CA6: Officer executing a state arrest warrant doesn’t have to independently verify its validity
- CA6: Closely monitored controlled buy shows CI’s reliability
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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 23, 2019
TX2: Judge’s failure to swear the SW affiant was fatal despite the fact there was a jurat on the papers that it was under oath
The judge issuing the search warrant didn’t swear the affiant, and the fact that the papers said it was under oath and there is a jurat isn’t enough. Wheeler v. State, 2019 Tex. App. LEXIS 2233 (Tex. App. – Ft. … Continue reading
NBC: Guests in South Korea motel rooms were filmed, the content streamed, police say: Four men were arrested for allegedly installing illegal cameras in dozens of motel rooms, then profiting from streaming the feeds to strangers online.
A search warrant for cell phones text messages did not prohibit the searchers looking at photographs as well because photographs are commonly included in text messages. There was admittedly probable cause for the text messages, but it here included photographs. … Continue reading
There was no reasonable expectation of privacy in the common area of an unlocked apartment building where observation of handling a gun occurred. The court distinguishes the use of a drug dog at an apartment door which does become a … Continue reading
CA9: Not well settled law that LEO stealing property during a search is 4A violation, so alleged thief gets qualified immunity
The law is not well settled, thus requiring qualified immunity, that a law enforcement officer’s stealing plaintiff’s property during a search is a violation of the Fourth Amendment. (Apparently something that’s obviously an unreasonable seizure doesn’t matter as long as … Continue reading
CA9: Younger abstention applied except to ptf’s 4A claim because it wouldn’t enjoin state proceedings
Younger abstention was properly granted, in part, because the state nuisance proceeding was a civil enforcement proceeding within the scope of Younger, the state proceedings implicated important state interests, the state proceedings provided an adequate opportunity for the state action … Continue reading
Police entered defendant’s house to secure it after sending one officer to get a search warrant. The entry didn’t require suppression of evidence because there was an independent source for the information in the search warrant application. United States v. … Continue reading
There is no reasonable expectation of privacy in a computer open to the world on a P2P network and anybody can come into. People v. Worrell, 2019 NY Slip Op 02127, 2019 N.Y. App. Div. LEXIS 2111 (2d Dept. Mar. … Continue reading
CA7: While the circumstantial evidence might support a SW or wiretap, it didn’t support guilt; reversed and dismissed
“We assume the government’s circumstantial evidence here might have supported a search warrant or perhaps a wiretap on Garcia’s telephone. It simply was not sufficient to support a verdict of guilty beyond a reasonable doubt for distributing cocaine. We reverse … Continue reading
Defendant was a former nursing home nurse, and she was under investigation by the state for allegedly getting some government benefits she wasn’t entitled to. The state Department of Investigations and Appeals issued subpoenas for bank records. They didn’t find … Continue reading
In an opinion on remand from the Texas Court of Criminal Appeals, Davis good faith applies to a search warrant issued under a provision of the Texas Penal Code later declared unconstitutional. Siller v. State, 2019 Tex. App. LEXIS 2227 … Continue reading