SCOTUS granted cert in Florida v. Jardines today limited to the first question:
Whether a dog sniff at the front door of a suspected grow house by a trained narcotics detection dog is a Fourth Amendment search requiring probable cause.
ScotusBlog is here with the petition and response.
My post on Jardines from April is here.
Defendant arrived at SEA and paid cash for a last minute ticket to Anchorage on Alaska Airlines and had no luggage. The ticket agent called the police, and they met defendant at the gate and talked to him. He consented to a full-body pat down that produced 700 Oxycodone pills. Going to the groin area for the search was reasonable under the facts. United States v. Russell, 664 F.3d 1279 (9th Cir. 2012):
The factual context is key to our decision. Bruch specifically advised Russell that he was looking for narcotics. After consenting to the search, Russell was more than cooperative. To facilitate the search, he lifted his arms to shoulder height and spread his legs. Russell could have objected either of the two times he gave verbal consent before the search, or while Bruch worked his way up from the ankles to the groin. See, e.g., United States v. Sanders, 424 F.3d 768, 776 (8th Cir. 2005) (granting a motion to suppress where the suspect consented to a search of his person but then withdrew consent by actively shielding his groin area from the officer’s search). Indeed, Bruch purposely searched from the ankles up because “it gives them an opportunity to say that they don’t want the search ... there is an opportunity to stop.” Instead Russell said nothing and certainly did nothing to manifest any change of heart about his consent to search. He never objected, expressed any concern, nor did he revoke consent or call a halt to the search, nor did he complain to the officer after the fact.
We hold that the search was reasonable. Narcotics are often hidden on the body in locations that make discovery more difficult, including the groin area. The search here did not extend inside the clothing. Finally, this case does not present a question of a body pat-down by an officer of the opposite gender. See, e.g., Hudson v. Hall, 231 F.3d 1289, 1298 (11th Cir. 2000) (noting as a significant factor that the searching officer was the same gender as the suspect); United States v. Rodney, 956 F.2d 295, 298 n.3 (D.C. Cir. 1992) (“In particular, we do not address situations where, unlike here, the officer and the suspect are of opposite sexes.”). Not only would a reasonable person in Bruch’s situation understand that the general consent for a narcotics search of the person included a pat-down of all areas of the body, including the groin area, Russell’s unrestricted consent to the search and conduct during the search suggested nothing different.
The warrant for defendant’s DNA was not unlawful. Defendant had no right to counsel before taking his DNA because it is not a critical stage. United States v. Lewis, 483 F.3d 871, 874 (8th Cir. 2007). United States v. Mathis, 2012 U.S. Dist. LEXIS 354 (W.D. Pa. January 3, 2012).*
Defendant’s belated challenge under Franks that his accomplice and companion was misidentified doesn’t even rise to the level of a Franks violation. A search of a common area bathroom on an apartment floor did not intrude in any reasonable expectation of privacy. United States v. Rucker, 2011 U.S. Dist. LEXIS 150540 (D. Minn. November 9, 2011).*
Defendant’s argument that the officer did not swear out a warrant for arrest and arrested on probable cause without it is not an indication that the officer found the tipster to be less credible. Acting that way was consistent with law and departmental policy, and there was probable cause in any event. United States v. Henderson, 2011 U.S. Dist. LEXIS 150558 (E.D. N.C. November 4, 2011).*
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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)