In another Jones on remand case, the district court held that suppressing the GPS data would not lead to suppression of the police determining that 9509 Potomac Drive was the stash house because they figured that out the day before the GPS was installed on his Jeep. United States v. Jones, 1:05-cr-00386 (D. D.C. December 20, 2012):
5. Here, the Court concludes that defendant has not met his burden of establishing that, “but for the illegal [GPS search], the officers likely would not have discovered [the stash house and the evidence contained therein].” Holmes, 505 F.3d at 1292. To the contrary, on September 26, 2005, a day before the GPS device was even attached to Jones’ car, law enforcement officials had determined that 9508 Potomac Drive was the likely stash house based on: (1) the GPS coordinates from the “ping” to the 678 cell phone; (2) property records confirming that only 9508 and 9509 Potomac Drive were not owner-occupied; and (3) the physical appearance of 9508 Potomac Drive as compared to the other houses on the street. (See supra Findings of Fact ¶¶ 7-13.) They had also initiated the process of installing a stationary camera at 9509 Potomac Drive before they began accessing data from the GPS device. (See supra Findings of Fact ¶¶ 15-17.)
6. The Court further concludes that even if defendant could demonstrate a causal nexus between the GPS data and the location of the stash house, the evidence would be admissible under the inevitable discovery doctrine. After the GPS device was installed on Jones’ Jeep, law enforcement officers continued to obtain information from independent—and lawful—sources that confirmed that 9508 Potomac Drive was in fact the stash house. For example, they continued to monitor the Title III wiretap and on October 4, 2005, they observed Jones and his associate Roel Bermea driving to and from the Potomac Drive area. (See supra Findings of Fact ¶ 19.) They also succeeded in installing a stationary camera at 9509 Potomac Drive and obtained visual confirmation that Jones and Bermea frequented the 9508 address. (See supra Findings of Fact ¶ 20.) Thus, even if the Court were not convinced that law enforcement officers had in fact identified 9508 Potomac Drive as the stash house prior to the installation of the GPS device on defendant’s Jeep, the government has met its burden of showing that, absent the constitutional violation, it would inevitably have confirmed the location of the stash house using entirely lawful.
h/t reader. Also, many of the D.D.C. opinions are available on its website, but this one isn't yet.
Defendant’s failure to object to the officer stating “we’re going to have to take the firearms” was not implicit consent. That was a statement they were taking property. State v. Jepson, 2012 Ore. App. LEXIS 1525 (December 19, 2012).
Defendant’s vehicle was already stopped when the officer came up to it and asked him out. When he got out, the officer saw drugs in plain view. The vehicle was not stopped by the officer, and that did not implicate the Fourth Amendment. Plain view supported the seizure. State v. Morales, 125 So. 3d 1141 (La. App. 5 Cir. 2012).*
Only a judge of a court of record can issue search warrants in Ohio, and the state showed that the judge’s appointment for a three month term by the Chief Justice was regular, so the search warrant was not suppressed. State v. Nurse, 2012 Ohio 6000, 2012 Ohio App. LEXIS 5172 (9th Dist. December 19, 2012).*
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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)