- CA5: Ptf’s 4A claims were Heck barred because they would interfere with the state prosecution.
- IN: Officer at front door to do knock-and-talk could look through gap in blinds
- S.D.N.Y.: AirBnB can’t block all discovery of customer’s third-party records
- E.D.N.Y.: Def did nothing to show his standing in the car or the things seized from it
- NY4: State didn’t show that CI actually existed; reversed
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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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Property not in the hands of the federal government cannot be ordered returned under Rule 41(g). Administratively forfeited case can’t be returned; there was a remedy. United States v. Morris, 2019 U.S. Dist. LEXIS 45071 (S.D.Ga. Mar. 19, 2019).
Defendant’s car being blocked in was a seizure because it meant he wasn’t free to leave. The officer had word that the car was stolen, and the VIN was run. Defendant claimed it wasn’t his car; he was just cleaning it out. There was, however, reasonable suspicion. United States v. Baca, 2019 U.S. Dist. LEXIS 45100 (D.N.M. Mar. 18, 2019).*
Defendant’s guilty plea waived his possible appeal of his suppression motion. People v. Brown, 2019 NY Slip Op 02178, 2019 N.Y. App. Div. LEXIS 2192 (3d Dept. Mar. 21, 2019).*
WaPo Retropod: Robert Morris, the creator of the subpoena (6:05):
The history of subpoenas, and the fiery congressional hearings that have captivated Americans for centuries began with a Founding Father raising his hand to say, “Investigate me!”
TX2: Judge’s failure to swear the SW affiant was fatal despite the fact there was a jurat on the papers that it was under oath
The judge issuing the search warrant didn’t swear the affiant, and the fact that the papers said it was under oath and there is a jurat isn’t enough. Wheeler v. State, 2019 Tex. App. LEXIS 2233 (Tex. App. – Ft. Worth Mar. 21, 2019).
Defendant raised a search issue involving a car that he disclaimed responsibility for. The motion to suppress was denied and the issue not appealed. His ineffective assistance of counsel claim for counsel not appealing an issue he’d lose on fails. He had no reasonable expectation of privacy in the car. United States v. Maddox, 2019 U.S. Dist. LEXIS 45541 (E.D. Tenn. Mar. 20, 2019).*
Four men were arrested for allegedly installing illegal cameras in dozens of motel rooms, then profiting from streaming the feeds to strangers online.
A search warrant for cell phones text messages did not prohibit the searchers looking at photographs as well because photographs are commonly included in text messages. There was admittedly probable cause for the text messages, but it here included photographs. State v. Page, 2019 N.H. LEXIS 53 (Mar. 19, 2019):
There was no reasonable expectation of privacy in the common area of an unlocked apartment building where observation of handling a gun occurred. The court distinguishes the use of a drug dog at an apartment door which does become a trespass. People v. Thomas, 2019 IL App (1st) 170474, 2019 Ill. App. LEXIS 168 (Mar. 19, 2019).
“Considering the totality of the circumstances present in this case, the tips from the local St. Johnians were completely devoid of sufficient indicia of reliability to support a reasonable suspicion that Rivera Gomez and Recio-Fernandez in particular had illegally entered the United States.” There was no showing they were citizen informants or were corroborated by the officers. United States v. Gomez, 2019 U.S. Dist. LEXIS 45601 (D.V.I. Mar. 20, 2019).*
CA9: Not well settled law that LEO stealing property during a search is 4A violation, so alleged thief gets qualified immunity
The law is not well settled, thus requiring qualified immunity, that a law enforcement officer’s stealing plaintiff’s property during a search is a violation of the Fourth Amendment. (Apparently something that’s obviously an unreasonable seizure doesn’t matter as long as the law isn’t settled.) Jessop v. City of Fresno, 2019 U.S. App. LEXIS 8271 (9th Cir. Mar. 20, 2019):
CA9: Younger abstention applied except to ptf’s 4A claim because it wouldn’t enjoin state proceedings
Younger abstention was properly granted, in part, because the state nuisance proceeding was a civil enforcement proceeding within the scope of Younger, the state proceedings implicated important state interests, the state proceedings provided an adequate opportunity for the state action defendants to raise federal constitutional claims, and except with respect to the allegedly unreasonable search, plaintiffs’ success on their claims for damages under § 1983 for violations of the First, Fifth, and Fourteenth Amendments and the Contract Clause of the Constitution and the Fair Housing Act, would have the practical effect of enjoining the state proceedings. As to plaintiff’s Fourth Amendment claim, however, the district court erred in abstaining from the § 1983 because a determination on that claim would not have the same practical effect as a declaration or injunction on pending state administrative proceedings. Herrera v. City of Palmdale, 2019 U.S. App. LEXIS 8272 (9th Cir. Mar. 20, 2019).
Police entered defendant’s house to secure it after sending one officer to get a search warrant. The entry didn’t require suppression of evidence because there was an independent source for the information in the search warrant application. United States v. Agent, 2019 U.S. App. LEXIS 8296 (4th Cir. Mar. 20, 2019):
There is no reasonable expectation of privacy in a computer open to the world on a P2P network and anybody can come into. People v. Worrell, 2019 NY Slip Op 02127, 2019 N.Y. App. Div. LEXIS 2111 (2d Dept. Mar. 20, 2019).
Finding the alleged suspect vehicle half an hour after a report of erratic driving was not reasonable suspicion. Lies v. N.D. DOT, 2019 ND 83 (Mar. 15, 2019).*
On a citizen complaint to 911 describing a person in a particular car casing cars in a parking lot, defendant was stopped, and it was with reasonable suspicion. United States v. Farley, 2019 U.S. Dist. LEXIS 44169 (N.D. Cal. Mar. 19, 2019).*
CA7: While the circumstantial evidence might support a SW or wiretap, it didn’t support guilt; reversed and dismissed
“We assume the government’s circumstantial evidence here might have supported a search warrant or perhaps a wiretap on Garcia’s telephone. It simply was not sufficient to support a verdict of guilty beyond a reasonable doubt for distributing cocaine. We reverse the district court’s decisions denying Garcia’s motions for judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29 and reverse his convictions for insufficient evidence.” United States v. Garcia, 2019 U.S. App. LEXIS 8311 (7th Cir. Mar. 20, 2019).
Defendant doesn’t show that the search warrant was issued without probable cause or at least a good faith belief in probable cause. United States v. Hansen, 2019 U.S. Dist. LEXIS 44357 (D. Neb. Mar. 19, 2019).*
The affidavit for the search warrant here was clearly not bare bones, as recounted by the court. The good faith exception applies at the minimum. United States v. Asgari, 2019 U.S. App. LEXIS 8059 (6th Cir. Mar. 19, 2019).*