- 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”
- N.D.Okla.: Motion to suppress must allege basis to overcome GFE, too
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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: Stop and frisk
Defendant’s patdown produced a wallet, and search of the ID inside exceeded its proper scope. State v. Maffey, 2021-Ohio-2460, 2021 Ohio App. LEXIS 2423 (12th Dist. July 19, 2021) This excessive force case for use of force during an arrest … Continue reading
The confrontation clause does not apply in suppression hearings. United States v. Bebris, 2021 U.S. App. LEXIS 20974 (7th Cir. July 15, 2021). The apartment’s search warrant was for evidence of drug sales from it. Those found there at the … Continue reading
A search incident of the unconscious defendant was unreasonable because it lacked any justification. He wasn’t arrested to be searched incident to it. United States v. Johnson, 2021 U.S. Dist. LEXIS 125188 (N.D. Ind. July 6, 2021). Defendant abandoned his … Continue reading
Officers obtained a search warrant for defendant possessing child pornography based on his interest in unclothed children and taking pictures. The district court suppressed, but the good faith exception applies to save the search. The government appealed on both probable … Continue reading
The officer had reasonable suspicion to stop defendant’s vehicle on the inference that the driver was the owner who had an outstanding warrant. The court declines to adopt a higher standard for reasonable suspicion under the state constitution. Commonwealth v. … Continue reading
“Thus, under binding precedent from this court and the Supreme Court, any reasonable officer would have known that Defendants’ suspicionless and warrantless search of Katzenjammer’s body, while she lay unconscious in a hospital bed, violated the Fourth Amendment.” Young v. … Continue reading
Defendant was accused of DUI and aggravated assault, and the officer decided that the additional complexity of investigating the assault charge made a warrantless blood draw exigent. It didn’t matter that the state charged him with the assault two months … Continue reading
The Crime Report: Continued Use of “Terry Stops” Raise Concerns of Racial Profiling and Trauma (“The frequently used stopping practice has garnered attention from reform advocates who insist it relies on racial profiling.”).
A citizen informant’s complaint defendant flashed a gun was justification for both a patdown and a protective weapons search of his car. State v. Shalash, 2021-Ohio-1034, 2021 Ohio App. LEXIS 1043 (10th Dist. Mar. 30, 2021). Calling for a drug … Continue reading
It was clearly established law in January 2015 that an officer’s unconfirmed hunch that an arrest warrant might possibly exist, coupled with nothing more than the officer’s recognition of a suspect from prior arrests, did not constitute reasonable suspicion justifying … Continue reading
VA: RS for a frisk of def just gotten out of car also justified frisk of his car, too, when frisk of person came up empty
Brandishing a gun at another was reasonable suspicion for a stop and frisk of a defendant and then the car. “After the officers found no firearm as a result of their pat down of the appellant’s person, this fact served … Continue reading
Terry stop questioning doesn’t require a Miranda warning until it gets confrontational and adversarial and the detainee isn’t free to leave. State v. Decanini-Hernandez, 2021 Iowa App. LEXIS 172 (Feb. 17, 2021). Defense counsel wasn’t shown to be ineffective for … Continue reading
“Nor can we say that Galligan’s enforcement action was clearly unlawful. The undisputed facts of this case demonstrate that Plaintiffs kept a variety of unusual objects in their backyard, causing it to resemble a junkyard. The question is not whether … Continue reading
Stop and frisk are separate questions in their justification and scope, citing Terry. People v. Baker, 2020 IL App (2d) 180300, 2020 Ill. App. LEXIS 880 (Dec. 22, 2020). Police came for a wellness check on defendant’s mother. The search … Continue reading
Officers’ display of firearms and handcuffing defendant in a detention after a 911 call of a man waving a gun was reasonable under Terry. United States v. Hearns, 2020 U.S. App. LEXIS 37363 (9th Cir. Nov. 27, 2020). Defendant was … Continue reading
Stopping car at the scene of a shooting 90 minutes earlier because more people piled in than there were seatbelts for was reasonable. [An anticipatory stop on reasonable suspicion a traffic offense was about to happen. The stop was clearly … Continue reading
While reversing on other grounds, the Fifth Circuit directs reconsideration of the stop and frisk as lacking reasonable suspicion on the record it had for lack of a hearing. United States v. McKinney, 2020 U.S. App. LEXIS 36333 (5th Cir. … Continue reading
D.Nev.: Walking into a Walmart in NV 5½ months after the El Paso Walmart shooting potentially armed with a shotgun was RS
A 911 call that defendant was potentially armed with a shotgun coming into a Walmart in Sparks NV, 5½ months after the El Paso Walmart shooting that killed 23 and injured 23 led to defendant’s stop and frisk. This was … Continue reading
Defendant’s patdown on the street in San Antonio lacked reasonable suspicion that his clothing suggested gang activity or the place was high crime. The firearm found on him is suppressed. The body camera evidence was used by the defense. The … Continue reading