Knock-and-talk at a motel room, where the officer was following up a tip from an unknown man that "crackheads" were staying in a particular room at the motel, brought a woman to the door. The officer asked about the man laying there, who was apparently asleep. The officer entered uninvited to wake the man up, and this was an illegal entry. Reed v. State, 944 So. 2d 1054 (Fla. App. 4th Dist. August 16, 2006).
Grandfather with whom defendant lived could not consent to search of a backpack in defendant's room because the government failed to show that the grandfather had actual or apparent authority to consent to searching it. It had the burden of proof on that issue. Glenn v. Commonwealth, 48 Va. App. 556, 633 S.E.2d 205 (August 15, 2006).
IAC claim denied where it alleged that defense counsel was ineffective for not pursuing a search issue and first post-conviction counsel failed to raise it too. It was raised in a successor petition, so the issue was defaulted. State v. Gray, 2006 Wisc. App. LEXIS 745 (August 15, 2006) (per curiam).*
The police do not have to completely investigate and find all they can before seeking a search warrant. The question is always whether they showed PC on the totality of circumstances on what they presented. United States v. Shields, 458 F.3d 269 (3d Cir. August 16, 2006):
Whether the FBI could have provided more information is not the benchmark, and other courts of appeals have rejected similar arguments. Gourde, 440 F.3d at 1073 n.5 ("[T]he benchmark is not what the FBI 'could have' done. HN8An affidavit may support probable cause even if the government fails to obtain potentially dispositive information."); United States v. Ozar, 50 F.3d 1440, 1446 (8th Cir. 1995) (holding that trial court "erred in focusing [its] Franks v. Delaware analysis on what the FBI could have learned with more investigation."). For purposes of our analysis, it is of no import that the FBI could have discovered more corroborating evidence, such as actual downloads, so long as the valid information it supplies satisfies the "fair probability" standard articulated in Gates. 462 U.S. at 238-39, 103 S. Ct. at 2332.
Defendant during traffic stop was giving inconsistent answers to questions, and he was asked for consent and he agreed. He was also told he could ask questions at any time during the search. United States v. Macedo, 2006 U.S. Dist. LEXIS 56501 (D. Neb. August 11, 2006).*
Officer had RS for investigative detention of the defendant from nervousness, being on a drug route, did not know the name of the owner of the vehicle he was driving, too much luggage for the trip, didn't know where he was staying when he got to Kansas City, and had to make a call when he got there to know where to go. United States v. Olivares-Campos, 2006 U.S. Dist. LEXIS 56621 (D. Kan. July 31, 2006).*
Where the allegations in a motion to suppress attack the search warrant as lacking probable cause, no hearing is required to consider the issue. United States v. Evans, 2006 U.S. Dist. LEXIS 56564 (D. Nev. July 10, 2006) ("Because the issues raised in the motion concern only the contents of the affidavit and search warrant, no factual issues need be resolved. Accordingly, an evidentiary hearing is unnecessary.").
Citizen informant who was eyewitness and gave a 33 minute taped interview was credible. The fact that he could be prosecuted for providing false information in a police investigation supports his credibility. Id.
The NSA's broad wiretapping program that sweeps into its perview non-terrorism suspects, including journalists, lawyers, and scholars, was declared unconstitutional by U.S. District Judge Anna Diggs Taylor of the Eastern District of Michigan. American Civil Liberties Union v. National Security Agency, 438 F.Supp.2d 754 (E.D. Mich. August 17, 2006). The opinion appears here. It was a resounding defeat for the Bush Administration.
CNN.com summarizes as follows:
The defendants "are permanently enjoined from directly or indirectly utilizing the Terrorist Surveillance Program (TSP) in any way, including, but not limited to, conducting warrantless wiretaps of telephone and Internet communications, in contravention of the Foreign Intelligence Surveillance Act and Title III," she wrote.
She further declared that the program "violates the separation of powers doctrine, the Administrative Procedures Act, the First and Fourth amendments to the United States Constitution, the FISA and Title III."
She went on to say that "The president of the United States ... has undisputedly violated the Fourth [Amendment] in failing to procure judicial orders." (bracketed material added)
The Washington Post article is here, and also adds this quote from the opinion:
"It was never the intent of the framers to give the president such unfettered control, particularly where his actions blatantly disregard the parameters clearly enumerated in the Bill of Rights," she wrote. " . . . There are no hereditary Kings in America and no powers not created by the Constitution. So all 'inherent powers' must derive from that Constitution."
Judge Diggs was appointed by President Carter in 1979.
Perhaps not ironically, the U.S. Supreme Court's biggest national security search case was United States v. United States District Court for the Eastern District of Michigan (Keith), 407 U.S. 297 (1972). The government lost that case, too.
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"If it was easy, everybody would be doing it. It isn't, and they don't."
"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
—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
—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!”
—Pepé Le Pew
"There is never enough time, unless you are serving it."
"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)