December 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
- MN: “Deer-in-the-headlights” look is a factor in RS
- D.Mass.: Park ranger’s arrest of def outside park wasn’t 4A violation, even if statute violated
- Reason: The Federal Government’s Plan to Track Truckers’ Every Movement Is a Privacy Nightmare
- N.D.Cal.: There’s almost always PC in the contents of a stolen car, such as something of owner’s
- D.S.D.: Totality of circumstances showed def likely resided in dwelling for entry on arrest warrant
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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: Plain view, feel, smell
A glass pipe almost certainly for ingesting drugs was “immediately apparent” for plain view, citing United States v. Van Zee, 380 F.3d 342 (8th Cir. 2004). United States v. Runner, 2022 U.S. App. LEXIS 21854 (4th Cir. Aug. 8, 2022). … Continue reading
A boat operating at night without lights in U.S. Customs waters violates federal law and it is subject to stop. United States v. Romero-Amaro, 2022 U.S. Dist. LEXIS 140477 (D.V.I. Aug. 8, 2022). In the tire chalking case, nominal damages … Continue reading
The Fourth Amendment does not require medical personnel participate in a prison strip search. Graham v. Wright, 2022 U.S. Dist. LEXIS 136026 (E.D. Cal. Aug. 1, 2022). Defendant’s stop for late night knocking on the door of a house where … Continue reading
“Based on the record developed at the suppression hearing, the Court finds that Detective McGee did not have reasonable suspicion to seize Defendant for the following reasons: (1) the Court does not credit Detective McGee’s testimony regarding the odor of … Continue reading
A probation officer at defendant’s house for a home visit could smell around the door, and, here, the smell of marijuana being used inside was evident. That was not unreasonable. United States v. Toney, 2022 U.S. Dist. LEXIS 120895 (E.D. … Continue reading
The fact that hemp was legal doesn’t make the smell like marijuana a lack of probable cause. United States v. McCallister, 2022 U.S. App. LEXIS 18642 (6th Cir. July 7, 2022) (people in a park); Hatcher v. State, 2022 Fla. … Continue reading
“While executing an arrest warrant, police discovered a closed bookbag with a plastic baggie stuck in its zipper. Without obtaining a search warrant, they opened the bookbag and discovered illegal drugs. The question for us is whether the warrantless search … Continue reading
“The Court finds that the search warrant affidavit comes nowhere near to establishing probable cause for the search of the cell phone. Simply put, this is a no-brainer. In fact, the government’s conclusory argument noted above demonstrates the futility of … Continue reading
The search of defendant’s backpack incident to a shoplifting arrest produced a firearm. Even if the search incident wasn’t proper, it was inevitable the backpack would be inventoried at the jail.United States v. Trogdon, 2022 U.S. App. LEXIS 15860 (8th … Continue reading
The government’s motion in limine against crossing the IRS agent on his search warrant affidavit is denied. The search has already been litigated, and defendant can’t use this as a “mini-Franks hearing.” The government can object if it goes far … Continue reading
A person in prison has no standing to contest a wiretap on a contraband cell phone. United States v. Yandell, 2022 U.S. Dist. LEXIS 91166 (E.D.Cal. May 20, 2022). “The facts of this case indicate that [Officer] Leitzen, while conducting … Continue reading
“We therefore conclude that, although appellant’s encounter with police may have been consensual initially, it advanced into a ‘seizure’ for Fourth Amendment purposes before appellant made any incriminating statements. Because there was no warrant, reasonable suspicion, or probable cause to … Continue reading
The missing dashcam video was not shown to be material. Defendant’s drug paraphernalia was in plain view and it was readily apparent what it was. That led to an automobile exception search. United States v. Griffith, 2022 U.S. Dist. LEXIS … Continue reading
E.D.Mo.: Empty sandwich bag in car not subject to plain view; incriminating nature not immediately apparent
The government failed to establish reasonable suspicion for defendant’s stop on an anonymous tip where nothing of substance was furnished contrary to Navarette. Moreover, it wasn’t immediately apparent an empty sandwich bag in the car was incriminating for plain view. … Continue reading
“Based on the language in the [Fourth Amendment] and Ohio Constitutions, we now hold that material witnesses are entitled to these basic, fundamental rights and therefore agree with the Eighth District that the state’s request for a warrant to detain … Continue reading
After witnessing suspicious movement, and observing white powder on the vehicle dashboard where defendant had been sitting, police had probable cause to arrest defendant on drug charges and consequently were justified in conducting a search of the defendant incident to … Continue reading
Firearms allegedly found “improperly secured” in defendant’s home during a search are not contraband subject to forfeiture. Commonwealth v. Fleury, 2022 Mass. LEXIS 149 (Mar. 31, 2022).* Defendant was stopped for overtinted windows, and, when he got out of the … Continue reading