Issue: Whether the Fourth Amendment allows the states to collect and analyze DNA from people arrested and charged with serious crimes.
There is no time limit for motions to suppress in a forfeiture case under the forfeiture rules, so they must be governed by local rule. Here, the motion should have been filed far earlier after discovery started than it did, and there is no excuse not to because the essential facts were known. United States v. $33,330.00 in United States Currency & Ten Pieces of Jewelry Valued at $27,750.00, 2012 U.S. Dist. LEXIS 159081 (N.D. Ga. September 4, 2012)*:
Rule G(8) of the Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture Actions provides, in pertinent part, the following:
Motion to Suppress Use of the Property as Evidence. If the defendant property was seized, a party with standing to contest the lawfulness of the seizure may move to suppress use of the property as evidence. Suppression does not affect forfeiture of the property based on independently derived evidence.
Rule G(8)(a). As such, a motion to suppress is a specific motion allowed in civil forfeiture matters.
. . .
Assuming, without accepting, that practical considerations would have made it difficult for Claimant to depose the law enforcement officers he had identified at the beginning of the discovery period, there are still other actions Claimant could have taken to preserve the Fourth Amendment issue for review by the Court. As is often done in criminal proceedings, Claimant could have filed in a timely manner a preliminary motion to suppress and sought leave to perfect the motion upon Claimant's receipt of all of the evidence supporting the motion. At the very least, Claimant could have stated in the Joint Preliminary Report that he intended to file a motion to suppress after conducting sufficient discovery and could have sought permission from the Court to do the same. Claimant took none of these actions. Instead, Claimant agreed to the deadlines adopted in the Court 's Scheduling Order and then made no mention of the Fourth Amendment issue until he filed his Motion to Suppress on November 2, 2009.
In addition to neglecting the deadline for filing the Motion to Suppress, Claimant still did not act diligently in raising the Fourth Amendment issue once he learned the information that he maintains forms the basis for the Motion to Suppress. ...
Defendant was on a Greyhound bus stopped at the permanent checkpoint south of Falfurrias, Texas, and she was suspected of having on a “body suit” carrying drugs. However, she was wearing Mandenform body shaping clothing. The stop became excessive and without reasonable suspicion. United States v. Diaz, 2012 U.S. Dist. LEXIS 159415 (S.D. Tex. November 7, 2012)*:
At the hearing on the motion to suppress, testimony and exhibits demonstrated that the beige piece of clothing that Defendant was wearing was not in fact a "body suit." What Agent Cavazos saw was actually one of two articles of clothing, each with brassiere-like straps attached to material covering the torso area. According to testimony, these two camisoles, one with an attached brief and built-in brassiere, are commonly used by women as body shapers. Evidence also showed that these common articles of clothes were made by Maidenform, a popular manufacturer of women's underwear. These styles of undergarment can be purchased at major retail stores, such as JCPenny and Walmart, and are advertised online.
. . .
Agent Cavazos relied heavily on Defendant's undergarment as an indicator that Defendant was a body carrier. Agent Cavazos, however, testified that only a small and commonly exposed portion of this undergarment was visible at the time of the immigration inspection. In fact, he was only able to see a strip of a beige article of clothing on Defendant's left shoulder that he believed to be made of spandex. Based on this evidence, the undergarment that Agent Cavazos saw peeking out from under Defendant's blouse could have been any type of women's undergarment, ranging from a brassiere to a full body suit. The commonality of such articles of clothing does not lend itself to creating individualized suspicion of wrongdoing merely by its use. And, though drugs may be stashed inside women's underwear, if the mere use of underwear was used to justify search or seizure of an individual, agents may have free rein over half the population passing through a checkpoint. See Portillo-Aguirre, 311 F.3d at 657 ("In short, neither the bag nor its location suggested that criminal activity was afoot. If such common circumstances qualified as reasonable suspicion, then most interstate travelers would be subject to prolonged detention, for virtually any item of luggage, from a handbag to a suitcase, is capable of housing illegal narcotics."). This undergarment, even when viewed with Defendant's northward travel as a single, heavy-set female, does not give rise to reasonable suspicion. Defendant was not nervous and Agent Cavazos did not articulate any other suspicious facts that may be used to build sufficient justification.
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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)