Defendant’s computer was subject to three search warrants and affidavits. The third one had two paragraphs referring to statements later suppressed. Removing the paragraphs does not alter the probable cause finding. [The court went the long way to this via the good faith exception and deterrence instead of cutting to the chase.] United States v. Woerner, 709 F.3d 527 (5th Cir. 2013).*
Where the automobile exception applies, the fact a backpack formerly in the car is outside it at the time of search doesn’t mean it can’t be searched. United States v. Vehikite, 2013 U.S. Dist. LEXIS 24841 (D. Utah February 22, 2013).*
The delay in getting information about defendant from dispatch because “the dispatcher was not the normal dispatcher” [while making no sense] didn’t unreasonably extend the stop to 27 minutes to get basic information about the defendant and allow time for the drug dog to arrive. That makes the detention not unreasonable. [Once again, a trial and appellate court defer to the police our rights]. State v. Williams, 2013 Ohio 594, 2013 Ohio App. LEXIS 528 (4th Dist. January 30, 2013).*
Defendant’s Miranda/Edwards rights were admittedly violated by the government, but that violation did not void defendant’s consent obtained after lawyered up. United States v. Gonzalez-Garcia, 708 F.3d 682 (5th Cir. 2013).
Suit against the county fails in its allegation that the county had a municipal custom of violating the Fourth Amendment from one discrete claim. Ogle v. Hocking County, 2013 Ohio 597, 2013 Ohio App. LEXIS 527 (4th Dist. January 31, 2013).*
Defendant pled guilty thereby waiving his alleged search claim. He can’t show that his guilty plea was a product of objectively unreasonable advice. United States v. Belk, 2013 U.S. Dist. LEXIS 24257 (D. S.C. February 22, 2013).*
Even if the police entered defendant’s house for a security sweep before the search warrant issued, the issuance of the search warrant supported the plain views under inevitable discovery. United States v. Moore, 2013 U.S. Dist. LEXIS 22830 (E.D. Mo. February 20, 2013).*
A reasonable officer would not have concluded that the arrest of the plaintiffs for breach of the peace here was valid, so they have no qualified immunity. Chimera v. Lockhart, 511 Fed. Appx. 785 (10th Cir. 2013).*
Dog sniff of a hotel hallway to learn about drugs in defendant’s hotel room was reasonable under Florida’s Jardines (pending in SCOTUS) because the curtilage was not entered. The dog alert was otherwise probable cause, and the dog was shown to be certified. United States v. Legall, 2013 U.S. Dist. LEXIS 23328 (E.D. Va. February 15, 2013).*
Today is the Tenth Anniversary of this blog.
What follows are 13 “realities” of Fourth Amendment adjudication that I see from having read so many Fourth Amendment cases for so long. This is § 2.1 of the new edition, forthcoming in late December, with 90 footnotes which are omitted here.
1. There no longer are any “technicalities” under the Fourth Amendment.
a. All alleged errors in the creation (e.g., actual probable cause), issuance (i.e., scrivener’s errors, including particularity), and execution of a search warrant (i.e., excessive search), are subject to a rule of reason [my words, cases don't say it that way, but this book does]; this is the essence of the reasonableness requirement.
b. “Objectively reasonable” or “objective reasonableness” is the second most important phrase in the Fourth Amendment case law after “probable cause.” It is how the “reasonableness” requirement is applied, it defines application of all the totality of circumstances standards, reasonable suspicion, the good faith exception ‒ nearly everything.
c. Thus, all questions regarding the construction of affidavits and warrants must be viewed from the perspective of encouraging the police to seek search warrants. Even fundamental mistakes can be in good faith and not prejudicial on the totality of circumstances.
d. Any alleged error requires that the target of the search was somehow “prejudiced” by what happened. Merely finding incriminating evidence is not prejudice. This is a “No harm, no foul” rule. Without the police finding something, we wouldn’t have a criminal case.
e. The Supreme Court would sometimes strive for “bright line rules” to make the Fourth Amendment easier for police to apply on the street, but that proved impossible in much of Fourth Amendment litigation because many situations defy bright line rules; e.g., “reasonableness” and “totality of the circumstances.” Even Payton, crying out for a bright line rule, ended up with the Fourth Amendment drawing “a firm line at the entrance to the house.” (See also “core values” under No. 4.)
2. Exclusion of evidence for a Fourth Amendment violation is the exception rather than the rule. Ending in the 1970’s, it seemed the rule rather than the exception, and that’s long over.
a. Exclusion has to result in “appreciable deterrence” of police conduct or misconduct to be applied. Where there is only marginal deterrence in a case means the exclusionary rule should not be applied.
b. The system benefits of deterrence must outweigh the costs. What “benefits,” exactly? Presumably adherence to the Fourth Amendment.
c. Therefore, there now is a good faith exception for warrantless searches.
3. The good faith exception applies to the finding of probable cause for the warrant. It was not, however, intended to apply to issues regarding the execution of warrant since the good faith exception was originally created to cure good faith probable cause errors in issuance of search warrants.
a. A court should consider probable cause first before considering good faith lest the Fourth Amendment stagnate, and no one would ever know whether a given set of facts constitutes probable cause.
i. It is part of the judicial function to decide probable cause, not decide that the question doesn’t need to be decided. When courts avoid deciding probable cause questions, they have deferred deciding probable cause questions to the police.
ii. Without deciding probable cause, police will continue to be able to arrest or search on similar facts without fear of civil liability because there will always be qualified immunity and no suppression of evidence. Therefore, courts should decide the question of probable cause before moving to the good faith exception.
iii. Deciding good faith without deciding probable cause should be the exception rather than the rule. In some jurisdictions, it’s not, and this is an abdication of the judicial function, exalting form over substance, and making the good faith exception more important than probable cause.
b. If the question of probable cause is difficult, the preference for warrants (see No. 1(b)) should lead a court to conclude that, even if there was no probable cause, there clearly was at least a good faith basis for finding probable cause in the first place and the product of the search warrant should not be suppressed. (This is what happened in Leon.)
c. The conduct of the officers must be “objectively reasonable,” referring back to the Fourth Amendment qualified immunity cases.
d. Of the four exceptions to the good faith exception under Leon, all are based on aggravated situations. Only the Franks “knowing and reckless falsity” has any real current value. The other three are becoming subsumed into the good faith exception in practice by cases that never factually measure up.
e. The Supreme Court says it hasn't yet applied the good faith exception in warrantless search cases. [But what is Davis?]
Today is the 252d anniversary of James Otis’ argument at the Boston Old State House against the writs of assistance in Paxton’s Case, heard Tuesday, February 24, 1761. (See this prior post from 2006).
WaPo: Md. DNA law at center of SCOTUS case aided 43 convictions; many possible even without new law by Associated Press:
WASHINGTON — A Maryland DNA law being challenged in the U.S. Supreme Court helped lead to 43 convictions over the past four years, but state data shows the majority of the convictions could eventually have happened even without the new law.
For years, Maryland required people convicted of serious crimes to provide a DNA sample. The sample, taken from a swab of saliva, was then compared against a database of DNA evidence from crime scenes, and some old cases were able to be solved. Maryland changed its law in 2009, however, so that people had to provide the saliva sample when they were arrested on charges of committing certain violent crimes — before going to trial.
Note: Maryland v. King is being argued Tuesday, Feb. 26 (ScotusBlog). Issue: Whether the Fourth Amendment allows the states to collect and analyze DNA from people arrested and charged with serious crimes.
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Most recent SCOTUS cases:
Plumhoff v. Rickard, granted Nov. 15, argued Mar. 4 (ScotusBlog)
Stanton v. Sims, 2013 U.S. LEXIS 7773 (Nov. 4, 2013) (per curiam)
Navarette v. California, granted Oct.1, argued Jan. 21 (ScotusBlog)
Fernandez v. California, granted May 20, argued Nov. 13 (ScotusBlog)
Maryland v. King, 133 S.Ct. 1958, 186 L.Ed.2d 1 (2013) (ScotusBlog)
Missouri v. McNeeley, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013) (ScotusBlog)
Bailey v. United States, 133 S.Ct. 1031, 185 L.Ed.2d 19 (2013) (ScotusBlog)
Florida v. Harris, 133 S.Ct. 1050, 185 L.Ed.2d 61 (2013) (ScotusBlog)
Florida v. Jardines, 133 S.Ct. 1409, 185 L.Ed.2d 495 (2013)ScotusBlog)
Clapper v. Amnesty International USA, 133 S.Ct. 1138, 185 L.Ed.2d 264 (2013) (ScotusBlog)
Ryburn v. Huff, 132 S.Ct. 987, 181 L.Ed.2d 966 (2012) (other blog)
Florence v. Board of Chosen Freeholders, 132 S.Ct. 1510, 182 L.Ed.2d 566 (2012) (ScotusBlog)
United States v. Jones, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012) (ScotusBlog)
Messerschmidt v. Millender, 132 S.Ct. 1235, 182 L.Ed.2d 47 (2012) (ScotusBlog)
Kentucky v. King, 131 S.Ct. 1849, 179 L.Ed.2d 865 (2011) (ScotusBlog)
Camreta v. Greene, 131 S.Ct. 2020, 179 L.Ed.2d 1118 (2011) (ScotusBlog)
Ashcroft v. al-Kidd, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) (ScotusBlog)
Davis v. United States, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011) (ScotusBlog)
Michigan v. Fisher, 558 U.S. 45, 130 S.Ct. 546, 175 L.Ed.2d 410 (2009) (per curiam) (ScotusBlog)
City of Ontario v. Quon, 560 U.S. 746, 130 S.Ct. 2619, 177 L.Ed.2d 216 (2010) (ScotusBlog)
Herring v. United States, 555 U.S. 135, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009) (ScotusBlog)
Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (ScotusBlog)
Arizona v. Johnson, 555 U.S. 323, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009) (ScotusBlog)
Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009) (ScotusBlog)
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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)