"The law, in its majestic equality, forbids rich and poor alike to sleep under bridges, beg in the streets ...."
— Anatole France, "The Red Lilly," 1894
In a civil case filed by the homeless persons of the City of Fresno by the ACLU, the E.D. Cal. held after a four day hearing that they were entitled to an injunction against the city's gathering up all their property and destroying it. Kincaid v. City of Fresno, 2006 U.S. Dist. LEXIS 93464 (E.D. Cal. December 8, 2006):
C. Likelihood Of Success On The Merits Unlawful Seizure.
6. The Fourth Amendment to the United States Constitution protects against unreasonable seizures and searches. Menotti v. City of Seattle, 409 F.3d 1113, 1152 (9th Cir. 2005). Similarly, Article I, Section 13 of the California Constitution provides in part that "[t]he right of the people to be secure in their persons, houses, papers and effects against unreasonable seizures and searches may not be violated ....," a provision that provides at least as much protection as does the Fourth Amendment. See People v. Brisendine, 13 Cal.3d 528, 548-52 (1975), abrogated on other grounds as discussed in In re Lance W., 37 Cal.3d 873, 879 (1985).
7. A seizure for Fourth Amendment purposes occurs when there is some meaningful interference with an individual's possessory interest in property. Soldal v. Cook County, Ill., 506 U.S. 56, 63 (1992). An officer who comes across an individual's property in a public area may seize it only if Fourth Amendment standards are satisfied--for example, if the items are evidence of a crime or are contraband. Id. at 68.
8. As the Ninth Circuit recently further explained:
Reasonableness is the touchstone of any seizure under the Fourth Amendment. Thus, to comply with the Fourth Amendment, the seizure ... must have been reasonable under the circumstances. We look to the totality of the circumstances to determine whether the destruction of property was reasonably necessary to effectuate the performance of the law enforcement officer's duties. A seizure becomes unlawful when it is "more intrusive than necessary." To determine whether the [given seizure] was reasonable, we balance the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests at stake.
San Jose Charter of the Hells Angels Motorcycle Club v. City of San Jose, 402 F.3d 962, 975 (9th Cir. 2005).
9. The City's policy and practice in dealing with the homeless, as implemented, effects seizures of homeless individuals' property. The interference with Plaintiffs' possessory interests is more than just "meaningful;" it is total and irrevocable, since the City seizes and then immediately destroys all of the property that it seizes in its sweeps. Id. at 975 ("[t]he destruction of property by State officials poses as much of a threat, if not more, to people's right to be 'secure in their effects' as does the physical taking of them.").
10. Such seizures, which result in the irrevocable destruction of homeless persons' property, are also "more intrusive than necessary" and therefore unlawful. Id. The City conducts its seizures in a highly intrusive manner, by immediately destroying the property and thus permanently depriving the homeless owners of their property. The City makes no effort to separate and or store for later retrieval items that are clearly owned and are valuable, not trash. Rather, the City's policy is to immediately seize and destroy all property in the area of the sweeps, without regard to the nature or value of the property.
11. The City's sweeps are not confined to seizure and destruction of property that is evidence of a crime or contraband, or that presents immediate threats to public health or safety. Even when homeless people inform City workers that they have been granted permission to keep their belongings where they are, the City seizes and destroys the property regardless. This policy and practice of seizure and destruction without just cause violates the Fourth Amendment and the concomitant protections against unlawful seizure found in the California Constitution.
12. The City has attempted to justify its policies and practices by its rule that the property of the homeless that it seizes and destroys is "abandoned" and is therefore "trash." The City's "rule," developed by Specialist Wallace and adopted by the City Police Department Sanitation Department, and City Manager, is that if a homeless person is not literally beside his or her property laying claim to it during a sweep, then the City deems that property to be abandoned, making the property "trash," which is then destroyed. There is no legal justification for this rule which is demeaning as it places no value on the homeless' property and is not honest because the "rule" purports to transmogrify obviously valuable property into trash.
13. In California, as under the common law, an item is the property of its owner unless the owner intentionally and voluntarily abandons it because "she simply no longer desires to possess the thing being abandoned." 1 Cal.Jur.3d Lost and Escheated Property, Sec. 2; See Katsaris v. United States, 684 F.2d 758, 761-62 (11th Cir. 1982). Here, the evidence demonstrates that Plaintiffs did not intend to abandon their tents, carts, clothing, bicycles, personal effects, memorabilia, and other property that they need to survive, and no reasonable official could believe this to be the case. Nor can the City treat property as abandoned and trash just because the owner has not removed it in the time the government has allotted. A & W Smelter and Refiners, Inc. v. Clinton, 146 F.3d 1107, 1111 (9th Cir. 1998).
14. The City's purported desire for clean and safe streets does not make its conduct lawful. Protection of the public does not require the wholesale seizure and immediate destruction of all Plaintiffs' possessions and in any event "is outweighed by the more immediate interests of the plaintiffs in not having their personal belongings destroyed." Pottinger v. City of Miami, 810 F.Supp. 1551, 1573 (S.D. Fla. 1992).
15. The City's seizure of homeless people's personal property without probable cause and the immediate and permanent destruction of such property without a method to reclaim or to assert the owner's right, title, and interest to recover such personal property violates the Fourth Amendment to the United States Constitution and Art. I, § 13 of the California Constitution.
Rule 41 did not govern a state search where the federal participation prior to warrant execution was minimal and not for the benefit of the federal government. United States v. Slater, 209 Fed. Appx. 489 (6th Cir. 2006) (unpublished) (argued as plain error):
We have held that "[w]hile it is important not to stifle cooperation between federal and state officers, we think it clear that federal officers, investigating a federal crime, must comply with the federal rules governing their conduct." Searp, 586 F.2d at 1121. However, "[m]ere federal involvement is not enough; there must be significant involvement prior to the search." United States v. Hunter, 4 F. App'x 295, 301 (6th Cir. Feb. 9, 2001); see also Searp, 586 F.2d at 1119-21. In Searp, for example, the investigation was a "joint undertaking between the Kentucky police and the FBI from the beginning," they initiated the investigation together, an FBI agent swore out the affidavit supporting the search warrant in question, there were five FBI agents present at the search, and a federal officer directed the search. Searp, 586 F.2d at 1121. On the other hand, in cases where only a single federal agent consulted on an investigation, did not participate in the process of obtaining a search warrant, and a decision to pursue federal charges was not made prior to the search, we have held that the requirements of Rule 41 do not govern the search. See, e.g., United States v. Alcorn, 9 F. App'x 426, 431 (6th Cir. May 16, 2001); Hunter, 4 F. App'x at 301.
The only evidence Slater presents that federal officers were substantially involved in the investigation is the testimony of ATF Agent Malone at the detention hearing held pursuant to 18 U.S.C. § 3142(f)(2). Slater's main evidence is that when asked on cross-examination: "When did the case officially come from [sic] a state case into a federal case?", Malone replied: "When I was contacted by the special investigations unit that they had learned through informants that Mr. Slater was distributing significant quantities of narcotics." JA 125. Neither the question nor Malone's reply demonstrates that all parties involved, both state officers and federal agents, considered that the investigation had become a federal investigation and stopped being a state investigation, nor is Malone's answer on cross-examination binding on this court. In fact, Malone's further testimony that he did not become the case agent, that Detective Floyd remained the case agent, that Floyd obtained the warrant, and that Malone's involvement in the investigation was limited all indicate that the state officers still considered it to be a state investigation at the time. Malone's answer to an ambiguous question may merely have indicated that it was at that time that the federal government began considering a concurrent federal investigation and/or federal prosecution. Based solely on this evidence, we cannot find that federal officers were so involved in the state investigation as to mandate that any warrant be obtained pursuant to federal standards. See Alcorn, 9 F. App'x at 431; Hunter, 4 F. App'x at 301.
A plaintiff prosecuted for a 20 year old child sex abuse allegation who was convicted at trial, affirmed on appeal, and released on federal habeas without retrial, stated a sufficient complaint to at least require the defendants to have to file a responsive pleading. Weimer v. County of Kern, 2006 U.S. Dist. LEXIS 93539 (E.D. Cal. December 22, 2006).*
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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)