- W.D.Mo.: 26 day delay in getting cell phone SW wasn’t unreasonable
- N.D.Cal.: Prolonging traffic stop to inquire of probation or parole status unreasonable
- W.D.N.Y.: 4A doesn’t protect a jail cell shakedown search; procedural due process does not apply
- NY2: Search of wallet during a frisk unreasonable
- CA4: Avoid “divide-and-conquer” reasoning on RS and PC
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Fourth Amendment cases,
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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: March 2022
A federal interstate truck requirement of an electronic logging device on the truck, incorporated under New York statute, for GPS, speed, and an event recorder is reasonable as an administrative search under the Fourth Amendment. It tracks the truck, not … Continue reading
Firearms allegedly found “improperly secured” in defendant’s home during a search are not contraband subject to forfeiture. Commonwealth v. Fleury, 2022 Mass. LEXIS 149 (Mar. 31, 2022).* Defendant was stopped for overtinted windows, and, when he got out of the … Continue reading
“The issue before us is whether the particularity requirement of the Fourth Amendment is satisfied if a warrant describes the place to be searched as a fraternity house as a whole without specifying a suspect’s actual room in the house, … Continue reading
Defendant had documents notarized at a Nashville law office where the practice of the lawyer-notary, not required by law, to copy what was notarized, and they did it for free. The government found out about it and subpoenaed the records. … Continue reading
D.Ariz.: To overcome Stone bar, pet’r has to proffer something about being denied “full and fair opportunity” to litigate 4A claim
To overcome Stone in a 2254, the petitioner has to proffer that he was denied a full and fair opportunity to litigate his Fourth Amendment claim. Failure to do so is fatal to claim. Bartels v. Arizona, 2022 U.S. Dist. … Continue reading
In an action before the Board for Correction of Naval Records, the service member had to raise his Fourth Amendment claim before the agency or it is waived, which is what happened here. McPherson v. Del Toro, Sec’y of the … Continue reading
“Next, Grant’s behavior once the traffic stop occurred gave police additional reasons to suspect that he was involved in criminal activity. King’s testimony and the video evidence presented during the hearing support the conclusion that Defendant Grant was attempting to … Continue reading
NYT: Does the End of Cash Mean the End of Privacy? by Peter Coy (“As cash disappears from the modern economy, privacy disappears with it. You can’t spend money with a credit card, debit card or check without creating a … Continue reading
Ordering plaintiff out of the Sheriff’s Office lobby for fear of disruption was novel as a potential seizure and that’s subject to qualified immunity. “Sheriff Crone’s conduct in ordering Mr. Brandt to leave the lobby due to a perceived disruption … Continue reading
The affidavit for the search warrant for defendant’s phone didn’t show nexus, but it was still relied upon in good faith. R&R rejected. United States v. Langford, 2022 U.S. Dist. LEXIS 55162 (E.D.Okla. Mar. 28, 2022). Sounds and observations of … Continue reading
D.Ore.: Detailed extra information to provide context that ultimately proves unnecessary to the PC finding doesn’t make the warrant bad
“SA Nix’s 56-page affidavit provides detailed information that is directly connected to an evasion of payment charge. Those few sentences or portions of sentences that pertain exclusively to an evasion of tax assessment charge have a de minimis impact on … Continue reading
“For another document to be considered part of a ‘warrant,’ it must be (1) incorporated by reference to the search warrant and (2) accompany the search warrant both when it is authorized by the judge and when the search warrant … Continue reading
WaPo: Letting police access Google location data can help solve crimes by Jane Bambauer (“Acquiring anonymous data about which devices were in a bank at the time of a robbery should not be unconstitutional.”) [So do general violations of the … Continue reading
Plaintiff stated a § 1983 claim that a jail phone provider recorded attorney calls. Kurtenbach v. Securus Techs., 2022 U.S. Dist. LEXIS 54089 (D.S.D. Mar. 25, 2022). Colorado grants immunity from crimes found as a result of a call about … Continue reading
Defendant’s DNA was obtained in a 2014 case that was dismissed. The DNA from that was used to connect him to this case. The prior DNA results are not excludable just because the case went away. Hayes v. State, 2022 … Continue reading
Defendant with his cell phone in hand was at the scene of a shooting as shown by surveillance video. That’s probable cause for the phone. United States v. King, 2022 U.S. Dist. LEXIS 53647 (S.D.N.Y. Mar. 24, 2022). When the … Continue reading
WI: After suppression of blood BAC test in hospital, SDT for hospital’s own test reasonable and independent
“After crashing his car, Daniel Van Linn was taken to the hospital, where two blood tests were performed: the first one by the hospital for diagnostic and treatment purposes; a later one at the direction of a sheriff’s deputy for … Continue reading
“Defendant argues that given the evolving laws regarding marijuana (and other cannabinoid products or derivatives), dog sniffs are increasingly becoming unreliable and therefore violative of the Fourth Amendment because dog sniffs cannot discriminate between contraband and marijuana that is legally … Continue reading
“The officers’ conduct up to and including Officer Mino’s decision to open the car’s passenger-side door fits within their role as community caretakers. As Mino testified at the suppression hearing, Mino believed that he and Anderson were responding to a … Continue reading
Officers had a search warrant for a tent in a homeless encampment. Announcement before entry wasn’t required where the tent was not shut. State v. Keanaaina, 2022 Haw. LEXIS 44 (Mar. 22, 2022). Officers encountered defendant’s car double parked on … Continue reading