Thomas K. Clancy, The Fourth Amendment's Exclusionary Rule as a Constitutional Right (Ohio State Journal of Criminal Law, Vol. 10, 2012), posted on SSRN. Abstract:
I am a proponent of the view that the rule is constitutionally based and is an individual remedy for the violation of that person’s Fourth Amendment rights. Both sides of the exclusionary rule debate regarding whether it is a mere tool to enforce deterrence or whether it is an individual right-based remedy have weighty authority and supporters. In my view, the constitutionally-based argument is persuasive: in constitutional law, there can be no right without a remedy. Subsidiary arguments reinforce that view. Those include the absence of any rational or empirical justification for the rule if based on deterrence theory, the lack of authority of the Court to apply the rule to the states absent a constitutional basis, and the coherence of justification of exceptions to the rule’s application if constitutionally based, unlike the ad hoc deterrence rationale, which is a mere substitute for each justice’s subjective assessment as to whether to apply the sanction.
TheHill.com: ACLU backs Twitter's bid to hide user information by Brendan Sasso:
The American Civil Liberties Union (ACLU) filed a brief in a New York state court on Thursday supporting Twitter's effort to avoid handing over the personal information of one of its users to the police.
New York City prosecutors had served Twitter with a subpoena for its data on Malcolm Harris, who was arrested for disorderly conduct during an Occupy Wall Street protest. The prosecutors asked Twitter for Harris's email address and all of his tweets in a three-month period.
Twitter argued that police would need a search warrant to access the communications. The court had concluded that Harris lacked the legal standing to challenge the subpoena on his own, but Twitter argued that its users have the authority to protect their own tweets.
WSJ.com: U.S. Argues to Preserve GPS Tracking (paywall) by Julia Angwin and Jess Bravin:
The U.S. government told a federal appeals court Thursday that it still has the right to place Global Positioning System tracking devices on cars without obtaining a search warrant—despite a January Supreme Court ruling that the warrantless installation of such a device violated the Constitution.
In arguments aimed at preserving warrantless GPS tracking evidence in a case before the Ninth U.S. Circuit Court of Appeals, the Justice Department relied on the fact that the high court didn't specifically state that a search warrant would be required in other situations.
Fourth Amendment Search and Seizure, Qualified Immunity and the Technological Age by Muna Busailah and Stephen P. Chulak, 2012 (6) AELE Mo. L. J. 501 (June 2012):
This article examines two decisions, issued by the United States Supreme Court in January 2012, concerning the Fourth Amendment. The first, Ryburn v. Huff, #11-208, 132 S.Ct. 987 (2012), involves a civil rights action by homeowners against police officers from the City of Burbank, alleging that the officers’ entry into their home violated the Fourth Amendment. The Supreme Court reversed the decision of the Court of Appeal and held that the officers had a reasonable basis for fearing violence was imminent, which entitled them to qualified immunity.
In the second case, United States v. Jones, #10-1259, 132 S.Ct. 945 (2012), the Supreme Court ruled that the attachment of a Global-Positioning-System (GPS) tracking device to a vehicle, and subsequent use of that device to monitor the vehicle’s movements on public streets, was a “search” within the meaning of the Fourth Amendment.
State officers seized a camera and memory card from defendant’s apartment based on statements from two witnesses that they saw images on defendant’s camera of him raping two young girls. Even if the state officials unlawfully seized the camera, the search warrant for what was held was reasonable. The federal search warrant warrant was executed four days after it expired, but probable cause still existed so the search was still reasonable. United States v. Ahmad, 2012 U.S. Dist. LEXIS 74325 (W.D. N.Y. May 29, 2012), adopted 2012 U.S. Dist. LEXIS 103003 (W.D. N.Y. July 24, 2012):
Courts have declined to order suppression of evidence seized pursuant to belatedly-executed warrants where probable cause still existed at the time of the execution and the police did not deliberately disregard the terms of the warrant. E.g., United States v. Sims, 428 F.3d at 955 (one-day delay in executing search warrant does not justify suppression because warrant was executed within the period prescribed by Rule 41, probable cause to search still existed and police did not intentionally disregard warrant's terms; "[because] non-prejudicial and unintentional violations of Rule 41 do not result in suppression, then a fortiori technical violations of the warrant itself compel the same result"); United States v. Gerber, 994 F.2d at 1561 n.4 (denying suppression where search was conducted three days after the warrant's expiration; "inadvertent, technical violation of Rule 41 should not preclude key incriminating evidence for which a valid warrant based on abundant probable cause was obtained"); United States v. Huslage, 480 F. Supp. 870, 875 (W.D. Pa. 1979) (denying suppression where warrant expired at 5:00 a.m., police conducted second search at 10:00 a.m. and probable cause to search still existed).
In this case, the evidence was seized by the Brighton Police on June 6, 2011, and remained in their possession since that date. The federal warrant was issued on August 25, 2011, and directed its execution by September 2, 2011. Couch executed the warrant on September 6, 2011, four days after the expiration date and twelve days after it was issued. Despite the warrant's expiration, probable cause to seize the items had not lapsed — the items were still in police custody and were as likely to constitute or contain relevant evidence on September 6 as they were on August 25, 2011. Ahmad has made no showing or even suggestion of prejudice resulting from the belated execution and no evidence exists that Couch intentionally disregarded the terms of the warrant. Indeed, Couch has explained that the delay resulted from his mistaken belief that he had sixty days to execute it. On this record, I find that the delay in executing the warrant did not constitute an unreasonable seizure within the meaning of the Fourth Amendment.
Strong chemical smell outside a building to a trained officer was probable cause for issuance of a search warrant for the house for meth. United States v. Collins, 2012 U.S. Dist. LEXIS 74639 (W.D. Okla. May 30, 2012):
The officer reporting the smell in this case, Undersheriff King, had attended both DEA and OBN schools regarding methamphetamine laboratories. Although it could have been more specific, the search warrant affidavit did state that the undersheriff was able to identify the odor because of his "training [and] experience with methamphetamines lab." Search Warrant, Attachment "B." As noted by defendant Smith, the affidavit did not specify the exact source of the odor. However, it is apparent that the smell was coming from a building on the Smith property and not a field ("drove by described residence in Attachment "A," and detected a very strong odor of Anhydrous Ammonia and Ether"). The affidavit also was not defective for failing to explicitly link the odor to a crime, since the specific chemical odor that is identified is commonly linked to the manufacture of methamphetamine. While the affidavit submitted to the state judge was certainly bare bones, the court concludes it was sufficient, in light of the flexible standard referenced above, to support issuance of the warrant.
The Knights reasonable suspicion standard applies to persons on federal supervised release. The USPO had RS, too. United States v. Lykins, 2012 U.S. Dist. LEXIS 74655 (E.D. Ky. May 30, 2012):
Knights is also applicable despite Defendant's status as a supervised releasee. Knights specifically addressed the warrantless search of a probationer's home. However, other courts have applied Knights' reasonable suspicion analysis to the search of a supervised releasee's residence. See, e.g., United States v. Krug, No. 3:09cr257, 2010 WL 2196607, at *4-5 (M.D. Tenn. May 26, 2010). Moreover, other circuits have recognized that supervised releasees and probationers have similar expectations of privacy. See United States v. Stewart, 532 F.3d 32, 36 (1st Cir. 2008) (recognizing that probation and supervised release are different forms of conditional release, and courts have not distinguished among conditional releasees for Fourth Amendment purposes); United States v. Weikert, 504 F.3d 1, 12 (1st Cir. 2007) (refusing to distinguish the privacy interests of a supervised releasee from a probationer); United States v. Zimmerman, 514 F.3d 851, 855 (9th Cir. 2007) (treating probationer's Fourth Amendment challenge to DNA Act as foreclosed by prior precedent addressing challenge by supervised releasee); Banks v. United States, 490 F.3d 1178, 1187 (10th Cir. 2007) (supervised releasees and probationers fall into the "category of felons on release who are not entitled to the full panoply of rights and protections possessed by the general republic"). In fact, the Second Circuit has held that supervised release places the most severe limits on expectations of privacy, greater than those of both parole and probation. United States v. Balon, 384 F.3d 38, 44 (2d Cir. 2004). Therefore, Defendant, as a supervised releasee, had the same, if not less, expectation of privacy as did the probationer in Knights. As a result, Knights' holding that the Fourth Amendment requires "no more than reasonable suspicion to conduct a search" of a probationer applies to the search of Defendant's residence. See Knights, 534 U.S. at 121.
From Crim Prof Blog:
The AALS Section on Criminal Justice will hold a panel during the AALS 2013 Annual Meeting in New Orleans entitled: Technology and Crime: The Future of the Fourth Amendment in Public.
. . .
New mass surveillance technologies are changing Fourth Amendment protections in public. Enhanced video cameras, GPS location devices, license plate readers, mobile body scanners, backscatter x-ray vans, facial recognition technology, drones, and satellite imaging, in combination, can all be directed at targeted geographic areas. Combined with, or replacing, traditional “stop and frisk” or police surveillance tactics, these technologies have the potential to alter Fourth Amendment protections. At the same time, intelligence-led policing strategies involving crime mapping and analysis have allowed law enforcement to identify areas of crime for targeted police intervention. This panel looks at the constitutional implications of these developments on the expectation of privacy.
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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)