In weighing the credibility of witnesses, the N.D. W.Va. notes that officers have an interest in having their searches validated such that it bears on their credibility. The officers responded to a domestic disturbance call and heard nothing from inside. They came to the door and pushed open a door to better see inside. United States v. Bridges, 2008 U.S. Dist. LEXIS 47850 (N.D. W.Va. June 12, 2008):
In weighing the credibility of the witnesses, the Court is well aware that all three of them have an interest in the outcome of this motion. Williams and Floyd obviously have an interest in having the constitutionality of their search validated. No officer wants to commit an error that results in a criminal going free due to the suppression of incriminating evidence. On the other hand, Bridges is strongly motivated to remember events in a way that invalidates the search. If this evidence is suppressed, he and Oliverio will go free. Otherwise, they risk conviction and incarceration for federal drug offenses. After weighing the witnesses’ credibility, this Court finds that the government has failed to carry its burden of establishing consent to the search by a preponderance of the evidence. A preponderance of the evidence means that it is more likely than not that something is true. Metro. Stevedore Co. v. Rambo, 521 U.S. 121, 137, 117 S. Ct. 1953, 138 L. Ed. 2d 327 (1997). The government’s evidence fails to persuade that it is more likely that Bridges gave consent than it is that he refused to consent to the search of his home.
The credibility of the police officers was damaged by admissions they made during the hearing that they had misstated the events at Bridges’s home in the report they authored only minutes after the incident. Tr. 56-57. Written by Floyd, the report stated that Williams had heard yelling coming from inside the residence as he approached. Tr. 56. The criminal complaint, filed only hours after the incident, also stated that both officers had heard yelling. Id. On cross-examination, however, Floyd admitted that both of these statements misstated the facts. Tr. 57. Moreover, during the hearing, both officers admitted they had heard no noise, nor had perceived anything unusual, prior to entering Bridges’s home. Tr. 19, 57.
In the Court’s view, these misstatements are material; had they actually heard any yelling as they approached the house, the officers might have been able to establish that exigent circumstances justifying a warrantless search existed. Their false police report, filed only minutes after an incident, as well as the false criminal complaint filed only hours after the incident, damages their credibility and, specifically, their testimony about what occurred at the time they searched Bridges’s home. Furthermore, Bridges’s behavior, which apparently was so non-compliant that he had to be forcibly subdued with handcuffs and a taser, supports his testimony that the search of his house was non-consensual. Therefore, because the government has failed to carry its burden of establishing consent to search by a preponderance of the evidence, the Court OVERRULES the government’s objections ADOPTS that portion of the R&R.
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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.
