October 2022 S M T W T F S 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31
- OH10: Window tint violation justified impoundment and inventory, even though discretionary
- NY2: Franks claim has to be fully developed; it’s more than just a false statement
- DC: Gant search incident for open containers did not permit search of a small plastic box
- CA11: Questions about travel plans were not an unreasonable extension of a traffic stop
- SC: Request for consent with “do you mind” met with “I do but …” not voluntary. Also no RS for continuing stop.
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Fourth Amendment cases,
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"If it was easy, everybody would be doing it. It isn't, and they don't."
“I am still learning.”
—Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"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 property."
—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 Amendment."
—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!”"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."
---Pepé Le Pew
—Johnson v. United States, 333 U.S. 10, 13-14 (1948)
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Category Archives: Uncategorized
D.Minn.: Request for TRO against cell phone search denied; aside from the fact criminal investigations are almost never enjoined, nothing is shown here to justify even hearing it yet
Plaintiff’s claim that the government’s seizure of his cell phone should be enjoined and it should be returned is denied. There is no proof of service on anybody for the government. (1) There is no effort to comply with F.R.C.P. … Continue reading
techdirt: Yet Another Data Broker Found To Give Massive Amounts Of Location Info To Law Enforcement by Tim Cushing:
Will catch up soon
techdirt: Ohio Court Says Distance Learning ‘Room Scans’ Violate The Fourth Amendment by Tim Cushing:
NLJ: Will Judicial Polarization Lead to More Strategic ‘Unpublished’ Opinions? (“Because unpublished opinions aren’t precedential and don’t typically get reviewed by full courts, some court watchers worry that panels could use them to get their desired outcome in a particular case … Continue reading
The good faith exception is determined before probable cause. If there is objective good faith, the rest doesn’t matter. The burden is on the defense to show the good faith exception doesn’t apply. United States v. Ledesma, 2022 U.S. Dist. … Continue reading
NCIS presented a search authorization that a military judge later determined was likely lacking in the showing of probable cause. To remedy that, NCIS did a new affidavit for warrant and presented it to a USMJ also with potential jurisdiction … Continue reading
USA Today: A lawyer in your pocket: Apps aim to change traffic stops forever with legal advice, live-streaming
USA Today: A lawyer in your pocket: Apps aim to change traffic stops forever with legal advice, live-streaming (“A review released this year of national police data gathered by the nonprofit Mapping Police Violence found police in the U.S. have … Continue reading
One search led to another. United States v. Orozco, 2022 U.S. App. LEXIS 20390 (4th Cir. July 25, 2022):
Reasonable suspicion is not required for a knock-and-talk. United States v. Raley, 2022 U.S. Dist. LEXIS 128634 (W.D. Ky. July 20, 2022). The officer ran defendant’s LPN and it came back with “verify proof of insurance status.” That justified the … Continue reading
Plaintiff is a self-described “constitutional lawyer,” and his claim the search warrant for phone wasn’t particular enough or that he had a right to see the warrant to point out defects to the officer before execution is denied. It was; … Continue reading
The Nixon campaign in 1968, and the Nixon White House after that, had two enemies: the antiwar left and black people. You understand what I’m saying? We knew we couldn’t make it illegal to be either against the war or … Continue reading
The search warrant was particular and not overbroad. The subject matter of the investigation sufficiently limited the search even though time wasn’t otherwise specified. United States v. Hugger, 2022 U.S. Dist. LEXIS 123081 (S.D. Fla. July 12, 2022):
Defense counsel wasn’t ineffective. The “hypothetical motion” to suppress would fail. Spriggs v. United States, 2022 U.S. App. LEXIS 17933 (11th Cir. June 29, 2022).* The rationale:
There is a reasonable expectation of privacy in one’s CSLI. One can have a reasonable expectation of privacy in his or her movements on public roads. Commonwealth v. Reed, 2022 Ky. LEXIS 132 (June 16, 2022):
50 years ago early this morning, the Watergate break-in occurred. And the rest is history. I was in the summer recess between being a 2L and 3L, probably already in summer classes. I studied for the bar exam to be … Continue reading
And here, the defendant won on the search issue: ATL: Federal Judge Just Doesn’t Feel Like Reading The Fifth Circuit’s Cases by Kathryn Rubino (“Is this the most relatable a federal judge has ever been?”) discussing United States v. McKinney, … Continue reading
Bloomberg Tax: Congress’ Crypto Reporting Rules Draw Constitutional Challenge (June 11, 2022) COURT: E.D. Ky.DOCKET: No. 5:22-cv-00149 (Bloomberg Law subscription)JUDGE: Karen K. Caldwell (Bloomberg Law subscription)
CNS: Can police secretly spy on your home without a warrant? The First Circuit doesn’t know by Thomas F. Harrison:
StarTribune: Ex-Minneapolis officer sentenced to three years in prison for stealing drugs during traffic stops
StarTribune: Ex-Minneapolis officer sentenced to three years in prison for stealing drugs during traffic stops by Randy Furst (“A former Minneapolis police officer who conducted questionable traffic stops in order to steal people’s drugs was sentenced Wednesday in U.S. District … Continue reading