NYTimes: Police Stops Are Down; So Is Murder by Jim Dwyer:
Last June, speaking at a church in Brooklyn, Mayor Michael R. Bloomberg said that the police had been cutting back on the number of people stopped, questioned and frisked.
This marked the official beginning of the end of the world in New York.
Address wrong only by the city the house was located in was not sufficient to void the search. There was only one possible place, and the police had been there before. United States v. Gordon, 2013 U.S. Dist. LEXIS 15272 (E.D. Mich. February 5, 2013).
The defendant’s premises were the subject of a search warrant and guns for sale were seized. Defendant here seeks a Rule 41(g) return of the guns, but the government claims them via a coming civil forfeiture. Therefore, defendant’s remedy will be there. United States v. Premises of 2nd Amendment Guns, 917 F. Supp. 2d 1120 (D. Ore. 2012).
Officers had a state search warrant for 320 CR 401. While there, they saw a truck 200 yards away on the lot of 320A CR 401, owned by defendant, not the target of the search. Officers claimed during the hearing to have called the state judge for clarification, but the judge wasn’t called as a witness, so that gets no credibility. A telephone call would have worked, if they followed Rule 41(d)(3). United States v. Rogers, 2013 U.S. Dist. LEXIS 14770 (N.D. Miss. January 4, 2013):
Though Fourth Amendment issues can sometimes be thorny, there is nothing difficult about the decision in this case because, by any rational measure, the law enforcement officers' search of Rogers' truck was unreasonable. Neither the truck nor the building by which it was parked were within the scope of the search warrant, and the officers' purported telephone call neither expanded the scope of the warrant, nor constituted a new warrant.
Though obtaining a warrant by requesting it from a judge over the telephone is permissible under Fed. R. Crim. P. 41, the officers followed not one of the strictures of the rule that protect a defendant's rights under the Fourth Amendment. Rule 4.1 requires that: (1) the request be given "under oath or affirmation"; (2) the testimony be recorded verbatim by an electronic recording device or in writing; (3) the testimony be transcribed, certified as accurate, and placed in the record; (4) the judge issuing the telephonic warrant sign it; and (5) the person seeking the warrant prepare a proposed duplicate original of it – and read or transmit its contents to the judge.
These requirements make the electronic procurement of a warrant reasonable. Without such protections in place, "telephonic warrants" are rife with the possibility of abuse by the government, as there would be no sworn record reduced to writing for a defendant (or a court) to review. In addition, without careful sworn documentation of law enforcement's representations to the court, such "telephonic warrants" would permit nearly any search to expand without practical limit. Officers could repeatedly call the issuing judge with unsworn descriptions of the scene to obtain authority to search an ever-expanding area. This is the circumstance in which Rogers found himself in the present case – a circumstance against which he could not raise a substantive challenge, as the critical facts were nowhere to be found in the record. Further, as the court conducted no evidentiary hearing, he had no chance to expose the warrant's deficiencies. The actions of the law enforcement officers violated the Fourth Amendment.
Volokh: Does Kyllo v. United States Apply to A Scan of A Person? And What is the Standard for A “Terry Scan”? by Orin Kerr:
New technologies often prompt new and interesting Fourth Amendment issues. Here’s the latest:
Get ready for scan-and-frisk.
The NYPD will soon deploy new technology allowing police to detect guns carried by criminals without using the typical pat-down procedure, Police Commissioner Raymond Kelly said Wednesday.
The department just received a machine that reads terahertz — the natural energy emitted by people and inanimate objects — and allows police to view concealed weapons from a distance.
“If something is obstructing the flow of that radiation, for example a weapon, the device will highlight that object,” Kelly said.
A video image aired at a Police Foundation breakfast Wednesday showed an officer, clad in a New York Jets jersey and jeans, with the shape of a hidden gun clearly visible under his clothing when viewed through the device.
The department will begin testing the high-tech device for use on the street. The device is small enough to be placed in a police vehicle or stationed at a street corner where gunplay has occurred in the past.
. . . [Kelly said:] “We still have a number of trials to run before we can determine how best to deploy this technology. We’re also talking to our legal staff about this. But we’re very pleased with the progress we’ve made over the past year.”
Use of this technology raises two primary Fourth Amendment questions. First, does it constitute a search under Kyllo v. United States? More specifically, does Kyllo apply when the device is used to obtain details from inside a person’s clothes rather than inside a home? And second, if use of the device is a “search” under Kyllo, what is the standard for when such a search is reasonable? Do you match the Fourth Amendment standard for a “virtual frisk” with the existing standard for a physical frisk? Or is the virtual frisk more or less invasive than the physical frisk in a way that would require more or less cause? Interesting questions.
District Court clearly erred in finding that defendant voluntarily consented to a search of his truck. On this record, it wasn’t voluntary. United States v. Perez, 506 Fed. Appx. 672 (9th Cir. 2013):
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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)