How to tell that the government is going to win: The first line of the opinion starts out "On June 7, 2006, Detective Jason Cebuhar, a 12-year veteran of the Rockford, Illinois, police department, received information ...." Defense counsel's not filing a more "elaborate" motion to suppress would not have changed the outcome. The consent question turned on credibility. The officers, of course, had no motive to lie. United States v. Dean, 550 F.3d 626 (7th Cir. 2008) (this opinion was hardly worth publishing).*
Assuming that the police violated the Fourth Amendment by holding for 48 days defendant's computer seized from the computer repair guys after the shop found child pornography, defendant's admissions when he was called in to talk about it and his consent to search his house for another hard drive was an independent source. This was merely "but for" causation without exploitation of an illegality. United States v. Budd, 549 F.3d 1140 (7th Cir. 2008).* Also, defendant's claim that he would have destroyed the evidence had he gotten access to it but for the illegal seizure was speculative and violated the principle that he had no constitutional right to destroy evidence, citing Segura v. United States, 468 U.S. 796, 815-16 & n.10 (1984)):
In this case, Budd demonstrated nothing more than but for causation. There is no evidence that the government exploited the illegal seizure of the computer; the government did nothing more than place the unsearched computer into an evidence room and leave it there. It was Budd who called the police, volunteered that he had "pretty graphic" files on his computer, and agreed to come down for questioning at the police station. It was Budd who called Detective Teshak the day after Budd's first interview to clarify some of his previous statements. Budd chose to make this second phone call, not because of police exploitation of the illegal seizure, but, as he told Detective Teshak, because he felt that in order to start the "healing" process, he needed to be truthful about the files on his computer. The illegal seizure indirectly prompted Budd's first phone call to the Moline Police Department; however, the seizure was not exploited, nor did it compel Budd to incriminate himself. Budd's statements to the police were not derivative of the seizure.
A search incident of a cellphone is not justified. United States v. Wall, 2008 U.S. Dist. LEXIS 103058 (S.D. Fla. December 22, 2008):
The Seventh Circuit has permitted the admission of phone numbers found on a pager during a warrantless search at the time of the arrest. United States v. Ortiz, 84 F.3d 977, 984 (7th Cir. 1996). The court reasoned that pagers have a finite memory, and new incoming pages can potentially destroy previously stored numbers. Id. Thus, the court there found it necessary for law enforcement to immediately search pagers to prevent the destruction of evidence. Id. The Fifth Circuit has extended the holding of Ortiz to searches of cell phones. United States v. Finley, 477 F.3d 250, 260 (5th Cir. 2007). However, the Finley court did not explain why cell phones should be treated the same as pagers for purposes of the Fourth Amendment.
After the Finley opinion was entered, a court in the Northern District of California distinguished cell phones from pagers and suppressed the information retrieved from the cell phones. United States v. Park, 2007 WL 1521573 (N.D. Cal. 2007). In Park, the court found that cell phones can store a great quantity of information, and the government made no showing that the search was necessary to prevent the destruction of evidence. Id. at *9. The court further found that the search of the cell phones could not be considered an inventory search, because such searches are used to document possessions of a person in custody, not as a "ruse for a general rummaging in order to discover incriminating evidence." Id. at *10 (quoting Florida v. Wells, 495 U.S. 1, 4 (1990)).
To determine if the search was valid, the Court has considered whether a search incident to an arrest, an inventory search, or exigent circumstances provide an exception to the warrant requirement in this case. Further, the Court has taken into account the testimony Agent Mitchell gave at the evidentiary hearing regarding his reasons for searching the cell phones for text messages: 1) he regularly performs searches as an investigative measure because it is common to find evidence of a crime in text messages; 2) it is a standard practice of the DEA and is authorized by the DEA Legal Department so long as the search is performed during the booking process; 3) he was concerned that the text messages might expire after a certain amount of time; and 4) the cell phone battery may die.
The Court declines to adopt the reasoning of Finley and extend law to provide an exception to the warrant requirement for searches of cell phones. The search of the cell phone cannot be justified as a search incident to lawful arrest. First, Agent Mitchell accessed the text messages when Wall was being booked at the stationhouse. Thus, it was not contemporaneous with the arrest. Kucynda, 321 F.3d at 1082. Also, the justification for this exception to the warrant requirement is the need for officer safety and to preserve evidence. Agnello v. United States, 269 U.S. 20, 30 (1925) (recognizing the long-held right of law enforcement "to find and seize things connected with the crime ... as well as weapons and other things to effect an escape from custody"). The content of a text message on a cell phone presents no danger of physical harm to the arresting officers or others. Further, searching through information stored on a cell phone is analogous to a search of a sealed letter, which requires a warrant. See United States v. Jacobsen, 466 U.S. 109, 114 (1984).
Record supports the trial court's conclusion defendant consented to the search of his car. People v. Visich, 57 A.D.3d 804, 870 N.Y.S.2d 376 (2d Dept. 2008).*
Officers watched defendant purchase psuedo three times and then he committed a traffic violation. PC for a search of the car was present by the plain view of the psuedo he saw on the dashboard. Vafaiyan v. State, 279 S.W.3d 374 (Tex. App. – Ft. Worth 2008).*
Quarles public safety exception is consonant with the Kentucky Constitution. Defendant was questioned about a discarded gun. Henry v. Commonwealth, 275 S.W.3d 194 (Ky. 2008), aff'g unpublished opinion of Court of Appeals.*
An anonymous tip of DUI does not support a stop unless the officer sees something that supports the conclusion the driver is under the influence. Here there was none. Harris v. Commonwealth, 276 Va. 689, 668 S.E.2d 141 (2008).*
Defendant had no expectation of privacy in his city owned computer that child porn was found on. United States v. Zimmerman, 303 Fed. Appx. 207 (5th Cir. 2008) (unpublished).*
Fourth Circuit holds, in light of its prior authority, that a driver not authorized by the rental company has no reasonable expectation of privacy in the rental car, recognizing a conflict in the circuits. United States v. Mincey, 2008 U.S. App. LEXIS 25508 (4th Cir. November 24, 2008) (unpublished).*
In responding to a 911 call, it was reasonable for the police to walk up to the one vehicle in the vicinity to see what was going on. United States v. Fields, 2008 U.S. Dist. LEXIS 102625 (N.D. Ind. December 18, 2008).*
Defendant IRS agents were sued under Bivens for $2,000 that disappeared between the seizure in plaintiff's house and the bank where it was deposited. The motion to dismiss was denied because plaintiff was not obligated to pursue a Federal Tort Claims Act action first. Springer v. Horn, 2008 U.S. Dist. LEXIS 102548 (N.D. Okla. December 17, 2008).*
Search of plaintiff's vagina for possibly hidden drugs was based on reasonable suspicion from another officer, and it was thus justified on plaintiff's arrest under Schmerber. Rogers v. Phoenix Police Dep't, 2008 U.S. Dist. LEXIS 102559 (D. Ariz. December 8, 2008).*
Handcuffing defendant after his flight was permissible under Terry. Plain feel justified search. United States v. Watson, 2008 U.S. Dist. LEXIS 101918 (N.D. Cal. December 5, 2008).*
The court credits the dog's training, in the face of an expert which did not show that the dog did not properly alert, but the officer testified that the dog did. United States v. Brooks, 589 F. Supp. 2d 618 (E.D. Va. 2008).*
The officer "was presented with a visibly nervous driver and passenger, numerous air fresheners, and a single key in the ignition. The court also does not discount [his] knowledge and experience gleaned from his employment as a DPS trooper." United States v. Alexander, 589 F. Supp. 2d 777 (E.D. Tex. 2008).*
It is not clear whether Samson applies to New York parolees for a suspicionless search. Here, however, there was suspicion, so that question does not have to be decided. United States v. White, 2008 U.S. Dist. LEXIS 102015 (S.D. N.Y. December 16, 2008)
Courts disagree as to whether or not the relevant parole regulation in New York is similar to the California statute at issue in Samson, and thus there is no consensus on whether or not Samson applies to cases involving New York parolees. Several courts have noted in dicta that New York does not have a statute similar to the California statute at issue in Samson, and they declined to decide whether the parole regulation and waiver signed by parolees in New York are sufficiently similar to the California statute for Samson to apply, instead finding the searches lawful on other grounds. See Alvarado v. City of New York, 482 F. Supp. 2d 332, 336 ("Samson specifically addressed a California parole statute that explicitly allowed for a search without cause by a parole officer. New York does not have an analogous provision.") (internal citation omitted); Gathers v. White, 2007 U.S. Dist. LEXIS 9054, at *9, fn. 4 (E.D.N.Y Feb. 8, 2007) (noting that New York does not have parole-specific statutory search provisions and declining to decide whether the features of "New York's parole landscape mean that New York allows the sort of suspicionless search of parolees that California does"); United States v. Justiniano, 2008 U.S. Dist. LEXIS 27709, *14-*15 (W.D.N.Y. May 29, 2008) (declining to apply Samson standard of suspicionless searches of parolees because "New York has no analogous statute" to the one at issue in Samson). However, opinions by other judges have suggested that the New York parole regulation and waiver are similar to the California statute in Samson. See United States v. Massey, 461 F.3d 177, 180 (2d Cir. 2006) (Miner, J. concurring) (finding the "waiver" signed by parolees authorizing searches in New York to be, "for all practical purposes, indistinguishable from the 'waiver' apparently signed in Samson in the form prescribed by California law"); United States v. Stuckey, 2006 U.S. Dist. LEXIS 58173, *8 (S.D.N.Y. 2006) (finding that the relevant parole regulation in New York is "[s]imilar to the California statute at issue in Samson" and holding that Samson may be dispositive, and in any case, the search was rationally and reasonably related to the parole officer's duties).
In addition to the open question of whether or not Samson applies to cases involving New York parolees, the scope of Samson's holding is unclear. The suspicionless search at issue in Samson was a search of the parolee's person. At no point in the opinion does the Supreme Court address the issue of whether a suspicionless search of a parolee's residence is permitted by the Fourth Amendment, under the California statute or otherwise.
Fourth Amendment cases,
citations, and links
Latest Slip Opinions:
U.S. Supreme Court (Home)
Federal Appellate Courts Opinions
FDsys: Many district courts
FDsys: Many federal courts
Military Courts: C.A.A.F., Army, AF, N-M, CG
Advanced Google Scholar
Google search tips
LII State Appellate Courts
LexisONE free caselaw
Findlaw Free Opinions
To search Search and Seizure on Lexis.com $
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)
Safford Unified School District #1 v. Redding, 557 U.S. 364, 129 S.Ct. 2633, 174 L.Ed.2d 354 (2009) (ScotusBlog)
S. Ct. Docket
Solicitor General's site
Briefs online (but no amicus briefs)
Curiae (Yale Law)
Oyez Project (NWU)
"On the Docket"–Medill
S.Ct. Monitor: Law.com
S.Ct. Com't'ry: Law.com
General (many free):
Google Scholar | Google
LexisOne Legal Website Directory
Lexis.com (criminal law/ 4th Amd) $
Findlaw.com (4th Amd)
FBI Domestic Investigations and Operations Guide (2008) (pdf)
DEA Agents Manual (2002) (download)
DOJ Computer Search Manual (2009) (pdf)
Congressional Research Service:
Electronic Communications Privacy Act (2012)
Overview of the Electronic Communications Privacy Act (2012)
Outline of Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012)
Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012)
Federal Laws Relating to Cybersecurity: Discussion of Proposed Revisions (2012)
ACLU on privacy
Electronic Privacy Information Center
Criminal Appeal (post-conviction) (9th Cir.)
Section 1983 Blog
"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)