The drivers of two cars moved to suppres on the grounds that searches of the passengers produced cocaine. The drivers were held to lack standing to challenge their search. The mere fact the government alleged “aiding and abetting” them did not create standing. “No testimony was offered in support of the two motions to suppress that the drivers of the two vehicles had provided the cocaine to the passengers or even were aware that the passengers were couriers of the cocaine seized.” United States v. Pittman, 2007 U.S. Dist. LEXIS 61332 (N.D. Ohio August 21, 2007). Comment: Seems like they might be close to a judgment of acquittal without the government producing some evidence that they knew. They should take care, moreover, that the government does not take a position in the trial inconsistent with its opposition to the motion to suppress. If so, the government would be collaterally estopped or the doctrine of judicial estoppel would apply.
School officials had reasonable suspicion to conduct a drug test during the school day after plaintiff left the school, was eluding school security, came back in and refused to go to the principal’s office at first but finally did, and had bloodshot eyes and runny nose and was asked about what he was doing outside and he said “I don’t smoke weed.” Also, the drug test was an oral swab. Summary judgment for defendants granted. Ineirghe v. Bd. of Educ., 2007 U.S. Dist. LEXIS 61841 (E.D. N.Y. August 22, 2007).*
Government required to put on proof that it did not use privileged information that it obtained during a search and that it possessed as a potential due process violation under Rochin v. California, 342 U.S. 165 (1952). United States v. Warshak, 2007 U.S. Dist. LEXIS 61358 (S.D. Ohio August 21, 2007):
Although the government provides assurances in its filings that it enacted procedures to protect Defendants’ privileged information, the Court finds gaps, both temporal and substantive, that can only be closed by sworn testimony of government agents that they did not use privileged information in obtaining evidence against Defendants. The Court finds well-taken Defendants’ questions concerning the amount of time that Agent Almaguer possessed privileged data, as well as concerning the fact that the government segregated in-house counsel computers, but apparently did not comprehensively screen other computers for privileged information. These questions merit a response.
The government asserts that its case is based upon proffers made by Berkeley employees and not on email communication. Should this be the case, it is not an onerous burden for the government to further produce its witnesses, who can testify that the government did not obtain their proffers by persuading them with privileged documentary evidence or information relating to conversations with lawyers.
The Court is not interested in enabling Defendants to conduct a fishing expedition by permitting the sort of discovery proposed by Defendant Chavan. The Court will not extend discovery so as to permit forensic discovery of case agent activity, short of a showing, under sworn testimony, that case agents used privileged material to support their investigation. The government characterizes any exposure that agents may have had to privileged information as incidental, harmless, and forgotten. Should such characterization be supported by credible sworn testimony, any alleged intrusion into privileged materials, although improper, cannot be prejudicial to Defendants or arise to the level of a due process violation.
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"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“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
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"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, Let it Bleed (album, 1969)
"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]
“Children grow up thinking the adult world is ordered, rational, fit for purpose. It’s crap. Becoming a man is realising that it’s all rotten. Realising how to celebrate that rottenness, that’s freedom.” – John le Carré, The Night Manager (1993), line by Richard Roper
"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." —Johnson v. United States, 333 U.S. 10, 13-14 (1948)
The book was dedicated in the first (1982) and sixth (2025) editions to Justin William Hall (1975-2025). He was three when this project started in 1978.
