- N.D.Ohio: Officer reasonably believed a traffic violation occurred, whether or not it did
- TX1: Voluntariness of consent shown by officers’ efforts to insure def understood what they were asking
- WA: Request for proof of payment of a bus fare is not a search
- S.D.Fla.: PC for constructive possession shown; def doesn’t have to handle firearm in video
- E.D.Tenn.: You post to Facebook at your peril; there is no REP in Facebook “friends”
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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
"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: Issue preclusion
Defendant was the subject of exigency based efforts to get his CSLI because he was actively being pursued as involved in a 2013 burglary investigation scoring 25 firearms. The CSLI request complied with the law at the time. Carpenter was … Continue reading
Denial of red flag petition reversed for lack of findings. “The Extreme Risk Protective Order Act of 2018 (the Act), New Jersey’s ‘red flag law,’ empowers a court to remove firearms from a person who ‘poses a significant danger of … Continue reading
“While this appears to be a case of first impression in Ohio, other states have uniformly held the Fourth Amendment’s exclusionary rule does not apply in child protection cases.” It follows State ex rel. A.R. v. C.R., 1999 UT 43, … Continue reading
Defendant lost his motion to suppress in state court over a warrantless entry into his garage. He later sued over the search under § 1983 in federal court. The federal case was precluded by the state denial of the motion … Continue reading
Successor habeas on ground that audio of dashcam video was muted to conceal a Fourth Amendment violation denied. It doesn’t show actual innocence for 2255(h). In re Jelks, 2021 U.S. App. LEXIS 18552 (6th Cir. June 21, 2021). Defendant had … Continue reading
Plaintiff’s civil rights complaint that OnStar allegedly illegally tracked his vehicle was already decided against him in his criminal case. The issue is precluded here. Lenhart v. Savetski, 2021 U.S. Dist. LEXIS 109462 (N.D. Ohio June 11, 2021). The collection … Continue reading
M.D.Ala.: Post-conviction petitioner has to show he told defense counsel of facts and issues not raised
When challenging defense counsel’s failure to raise an issue in an ineffective assistance of counsel claim, it behooves the defendant to show that defense counsel was told about the issue. Defendant here was aware of the alleged fact he complains … Continue reading
Per the dissent, the Michigan Court of Appeals erred in holding in an unpublished opinion that the good faith exception is an exception to the warrant requirement, not the exclusionary rule. People v. Mead, 2020 Mich. App. LEXIS 6223 (Sept. … Continue reading
Plaintiff’s false arrest claim claiming, inter alia, a Fourth Amendment violation, two years into his pending state criminal case was barred by the Younger doctrine. Sweeting v. Garrett, 2021 U.S. Dist. LEXIS 66705 (S.D. Ala. Apr. 6, 2021). Under Washington’s … Continue reading
The officer pushing down the plaintiff causing injury was a seizure. “A reasonable officer in Sasse’s position would not have thought it appropriate to shove Martinez so forcefully without first at least requesting that Martinez step back or step away … Continue reading
CA5: Ptf’s § 1983 case over his search implies invalidity of the conviction, and it’s barred by Heck
Plaintiff’s § 1983 case against his search and seizure implies invalidity of the conviction, and it’s barred by Heck. VanBuren v. Walker, 2021 U.S. App. LEXIS 9115 (5th Cir. Mar. 29, 2021). “As to Hoffert’s remaining claim for violation of … Continue reading
“Turning to Stokes’ claim that trial counsel was ineffective for failing to investigate his case and make various arguments on his behalf, the record refutes this claim. First, it is clear that trial counsel carefully considered filing a motion to … Continue reading
Defendant’s trash container at the foot of his driveway awaiting pickup was not on the curtilage. Moreover, he had no reasonable expectation of privacy in it sitting there. State v. Peart, 2021 Del. Super. LEXIS 243 (Mar. 25, 2021). Rooker-Feldman … Continue reading
“The firearms and drugs were found during the protective sweep of the passenger area of the vehicle. The initial stop and pat-down of Defendant were justified under Terry, and the subsequent protective sweep of the car for weapons was a … Continue reading
It appears that plaintiff’s complaint over his criminal case would likely be barred under Heck if he’s convicted. Therefore, it is administratively closed and stayed. McClain v. Morales, 2021 U.S. Dist. LEXIS 53173 (E.D. Wis. Mar. 22, 2021). Defendant’s motion … Continue reading
A written search inventory policy isn’t constitutionally required. “We hold that, in order to establish that an inventory search is reasonable, the prosecution must establish that an inventory-search policy existed, all police officers were required to follow the policy, the … Continue reading
2254 petitioner’s claim that the search and seizure testimony in state court was based on perjury still doesn’t get him over Stone v. Powell. Wilson v. Maine, 2021 U.S. Dist. LEXIS 44260 (D. Me. Mar. 10, 2021). A § 1983 … Continue reading
“Here, the only plausible reading of the allegations is that Doe accidentally shot Ulises while trying to help him by ending the hostage situation. Such accidental conduct does not result in a Fourth Amendment seizure. See Brower, 489 U.S. at … Continue reading