- AL: Manipulating object in pocket of person leaving a drug house exceeded Terry
- CA9: Using ruse to get def home to search his car under a SW was unreasonable
- CA9: Prison visitor should be allowed to avoid a strip search based on RS by being permitted to leave
- PA addresses smell of MJ in a new MMJ state: it’s a factor in RS, and not determinative of RS or PC
- N.D.Ind.: Defense counsel not ineffective for challenging state search under state constitution and not 4A 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: July 2020
CNET: Lawmaker questions Google’s CEO about geofence warrants by Alfred Ng (“The warrants allow police to sweep up location data belonging to any people who were in a specific area. | Geofence warrants are facing legal challenges across the US, … Continue reading
“Following the district court’s hearing and ruling that the delay was not unreasonable, the appeal has been restored to this panel. We now rule that the police delayed unreasonably long in violation of the Fourth Amendment when they waited without … Continue reading
“Because the totality of the circumstances, including the smell of burnt marijuana and Kizart’s reaction and behavior when Russell asked Kizart about the trunk, provided probable cause to search his car’s trunk, we Affirm the denial of the motion to … Continue reading
The decriminalization of marijuana in Maryland, the odor of marijuana, without more, is not probable cause. Smell alone doesn’t tell the quantity. Lewis v. State, 2020 Md. LEXIS 348 (July 27, 2020):
The CI was reliable and provided probable cause. A knock-and-announce violation doesn’t warrant suppression. Cleveland v. State, 2020 Tex. App. LEXIS 5829 (Tex. App. – Houston (1st Dist.) July 28, 2020):
Just because the state trial judge’s signature was illegible doesn’t violate the Fourth Amendment. The judge’s name was stamped below. United States v. McElroy, 2020 U.S. Dist. LEXIS 132608 (D. Ore. July 24, 2020). Franks challenge fails: “Thus, the bottom … Continue reading
“Petition for Writ of Certiorari GRANTED. EN BANC. [¶] Whether the court of appeals erred in concluding that video surveillance through a camera mounted to a utility pole constituted a warrantless search in violation of the Fourth Amendment.” People v. … Continue reading
Tasering a resisting suspect is reasonable, and the video shows it. Siders v. City of Eastpointe, 2020 U.S. App. LEXIS 23454 (6th Cir. July 24, 2020).* The controlled buy off defendant was clearly probable cause for the search warrant, so … Continue reading
By the court: “The panel explained that when a confession results from certain types of Fourth Amendment violations, the government must go beyond proving that the confession was voluntary—it must also show a sufficient break in events to undermine the … Continue reading
The district court held the affidavit for drugs in defendant’s house was lacking nexus and probable cause for lack of good information and the good faith exception didn’t apply. Affirmed. United States v. Ward, 2020 U.S. App. LEXIS 23607 (6th … Continue reading
techdirt: Appeals Court Bashes Predictive Policing And The Judge Who Argued People In High Crime Areas Want Fewer Rights
techdirt: Appeals Court Bashes Predictive Policing And The Judge Who Argued People In High Crime Areas Want Fewer Rights by Tim Cushing;
CAAF: Devolution of M.R.E. 311(a) authority is a functional test; Lt.Col. overseas, and Maj. in charge of everything else
Devolution of authority from a commanding officer at a military installation from one to the Executive Officer during a six month deployment is governed by a functional analysis under M.R.E. 311(a). Here, the Major had authority in the absence of … Continue reading
TRO granted in Portland protests against arrests of journalists and legal observers without probable cause. Index Newspapers LLC v. City of Portland, 2020 U.S. Dist. LEXIS 131672 (D. Ore. July 23, 2020):
“[W]hen a warrant is issued to search an electronic device, that warrant is executed when the device is seized or the data is copied on-site, which must occur within Rule 5-211(C)’s ten-day time limit. Rule 5-211(C)’s ten-day time limit applies … Continue reading
W.D.Mo.: No const’l distinction between jailer monitoring jail calls and turning them over to prosecutors
There is no constitutional distinction between a jailer listening to calls and then forwarding them to prosecutors for use as potential evidence. United States v. Nesbitt, 2020 U.S. Dist. LEXIS 131220 (W.D. Mo. July 24, 2020). Officer’s statement that a … Continue reading