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: Waiver
MD: Full searches of cell phones can be a general search; there must be particularity or time limitation
Blanket full searches of cell phones without a particularity or time limitation can violate the Fourth Amendment and become a general search. It is suggested there be a search protocol if possible to limit the officers’ discretion. Despite all those … Continue reading
Defendant’s Fourth Amendment ineffective assistance of counsel claim is presented on appeal differently than at the hearing level, and that’s waiver. State v. Lessley, 312 Neb. 316 (2022). The affidavit for search warrant was issued with probable cause under the … Continue reading
Plaintiff’s § 1983 suit that only claimed violations of state law did not state a Fourth Amendment claim. Lyons v. City of Abbeville, Ala., 2022 U.S. App. LEXIS 24110 (11th Cir. Aug. 26, 2022). Defendant does not get return of … Continue reading
Plaintiff’s prison warden denied qualified immunity for ordering three strip searches a day on plaintiff when he was in segregation. Fugate v. Erdos, 2022 U.S. App. LEXIS 23208 (6th Cir. Aug. 18, 2022). “The defendant officers were attempting to locate … Continue reading
PA: Failure to argue new case law where it came out 3-1/2 months before suppression hearing was waiver
Defendant doesn’t get the application of a case to his decided 3½ months before his suppression hearing where he didn’t argue it. Commonwealth v. Brown, 2022 PA Super 138 (Aug. 10, 2022). CSLI lawfully obtained before Carpenter saved by the … Continue reading
Bivens should not be extended to an immigration detention. K.O. v. Sessions, 2022 U.S. App. LEXIS 20984 (D.C. Cir. July 29, 2022). Plaintiff filed a § 1983 case against his prosecution which fails on Younger grounds. As to an illegal … Continue reading
N-M: Cell phone search authorization for one day produced 200,000 images; but still not unreasonable because of how it was done
The search authorization for defendant’s cell phone for location data and images for a particular date was supported by probable cause. The Cellebrite download included 200,000 images, far more than the day in question. While looking for the day in … Continue reading
Defendant’s first minute-long patdown was unreasonable, but produced nothing. There was no separate reasonable suspicion for the second one. State v. Barcus, 2022-Ohio-2491, 2022 Ohio App. LEXIS 2355 (5th Dist. July 20, 2022). Police went to defendant’s house on a … Continue reading
There is no reasonable expectation of privacy nor HIPAA privacy in a drug prescription database. Commonwealth v. McFarland, 2022 PA Super 116, 2022 Pa. Super. LEXIS 288 (June 29, 2022). Defendant’s Fourth Amendment claim was litigated before trial and on … Continue reading
A condominium association installed a newer fire protection system, and it was subject to annual testing. The ordinance only required it be tested by somebody, and who would likely be a contractor. It did not compel a search under the … Continue reading
“These cases clearly establish that forced compliance with orders is a Fourth Amendment seizure. Mendenhall and Saari establish that words that compel compliance with the officer’s orders to exit a house constitute a seizure. Thus, when taking the facts in … Continue reading
Failure to articulate one’s argument that the state constitution requires a different result is waiver. State v. Versteegh, 2022 Iowa App. LEXIS 434 (June 15, 2022). “Here, the issuing judge reasonably concluded, based on all of the circumstances, that there … Continue reading
“In his third numbered objection, Lee argues that contrary to Officer Kennedy’s testimony, the RV was completely immobile at the time it was searched and that it was being used as a residence. But whether the RV was mobile or … Continue reading
Defendant consented to providing his passcode to his cell phone. Even if not, it was admissible because of inevitable discovery. United States v. Morales, 2022 U.S. Dist. LEXIS 104053 (E.D.Mo. June 10, 2022).* “Defendant’s contention that his right to due … Continue reading
Defendant’s disavowing the search issue in his motion to suppress involved Franks is waiver for appeal. The state sought clarification it wasn’t an issue and got it. State v. Claytor, 2022-Ohio-1938, 2022 Ohio App. LEXIS 1812 (8th Dist. June 9, … Continue reading
The exclusionary rule applies to Oklahoma City’s effort to enforce a warrantless entry to seize and forfeit birds in apparent distress. Oklahoma applies the exclusionary rule in most civil cases under its state constitutional provision against unreasonable searches. There was … Continue reading
Defendant wasn’t entitled to a Franks hearing by attempting to show that he had an alibi for only one controlled buy at issue, which wasn’t quite good enough anyway for probable cause. United States v. Washington, 2022 U.S. Dist. LEXIS … Continue reading