- N.D.Ohio: Alleged ambiguity in whether nighttime search authorized resolved by all the circumstances in favor of it
- S.D.Ohio: GFE overcomes lack of nexus; officer unaware of some facts didn’t commit Franks violation
- S.D.Ohio: Nexus shown to business from alleged drug transactions outside
- MA: No REP in unlocked basement of apt building
- OH12: State’s “reasonable mistake of fact” justification for stop has to be raised in trial court first
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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: February 5, 2021
MO: Trial court erred in shifting burden on voluntariness of consent to def and considering failure to testify at suppression hearing
The trial court erred in putting the burden of proof on the defendant to rebut the state’s claim of consent. He didn’t testify, but he cross-examined. The trial court also held against him the failure to testify. State v. Crum, … Continue reading
Reason: SCOTUS To Decide if Cops Need More ‘Elbow Room’ To Conduct Certain Warrantless Home Searches
Reason: SCOTUS To Decide if Cops Need More ‘Elbow Room’ To Conduct Certain Warrantless Home Searches by Damon Root (“A new case tests the limits of the “community caretaking exception” to the Fourth Amendment.”)
NYT: Opinion: They Stormed the Capitol. Their Apps Tracked Them. By Charlie Warzel and Stuart A. Thompson (“Times Opinion was able to identify individuals from a trove of leaked smartphone location data.”)
Knights on parole and probation searches is a reasonableness on the totality test, and this measures up. Defendant’s criminal record is a relevant factor for the officers to consider. United States v. Sharp, 2021 U.S. Dist. LEXIS 18768 (N.D. Ohio … Continue reading
Defendant had no objective reasonable expectation of privacy in an apartment he wrongfully entered and assaulted the occupant. A black case he kept there had a subjective expectation of privacy but not an objective one. United States v. John, 2021 … Continue reading
The affidavit showed probable cause, but it completely failed to show nexus to defendant’s place. It was so deficient in the showing of nexus that the good faith exception cannot apply. United States v. King, 2021 U.S. Dist. LEXIS 18956 … Continue reading
The day before defendant’s parole search, the state supreme court put the legality of his parole status in doubt. Nobody involved even knew about the case. The court agrees that the good faith exception applies to the search because there … Continue reading
The government showed sufficient grounds to have the search warrant application remain under seal to protect the integrity of the investigation. United States ex rel. Childress v. Carolina Comprehensive Health Network, 2021 U.S. Dist. LEXIS 18389 (M.D. N.C. Feb. 1, … Continue reading
“Second, the affidavits supported the Magistrate’s determination that there was a nexus between the murder and Defendant’s iPhone. The affidavits averred that Witness 2 texted Defendant throughout the day of the murder.” State v. Wilson, 2021 Del. Super. LEXIS 84 … Continue reading