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: Staleness
Following defendant for 30 miles is not a seizure. Finally, there was a consensual encounter. The R&R found it not; the USDJ disagrees. United States v. Ramos, 2022 U.S. Dist. LEXIS 166913 (D. Ariz. Sep. 14, 2022).* 2½ months isn’t … Continue reading
EFF sued for access to search warrant materials that led to use of cell site simulators. The court finds that the protection of named CIs in the papers still needs to be protected, and they remain under seal. Electronic Frontier … Continue reading
“[T]he air freshener in a non-smoking rental car was an early and legitimate basis for suspicion to be aroused. In general, the use of air fresheners is a recognized factor contributing to reasonable suspicion.” United States v. Hawari-Rasulullah, 2022 U.S. … Continue reading
Defendant officers’ motion for summary judgment on qualified immunity for violating the knock-and-announce rule is denied. The law is well settled for 25 years and there are no blanket exceptions. The rest is fact bound. Murphy v. Grochowski, 2022 U.S. … Continue reading
“[W]e conclude that although this was an isolated event and the evidence sought was easily removable, the passage of six days was not significant enough to render the warrant stale.” State v. Euchner, 2022 Iowa App. LEXIS 590 (Aug. 3, … Continue reading
CA11: Absolute prosecutorial immunity doesn’t apply to failure to recall a material witness warrant leading to arrest
Absolute prosecutorial immunity does not apply to failure to recall a material witness warrant that caused a voluntary witness to be arrested later. Kassa v. Fulton Cty., Ga., 2022 U.S. App. LEXIS 19762 (11th Cir. July 18, 2022). There was … Continue reading
Defendant’s claim of illegal search is moot for the trial because the government says it’s not using it. It could, however, come up at sentencing. “In United States v. Tejada, the Second Circuit held that ‘[a]bsent a showing that officers … Continue reading
The offense of receiving child pornography rarely gets stale, and here it didn’t. Here it was images from a young girl the defendant sought. United States v. Brackman, 2022 U.S. Dist. LEXIS 118020 (N.D. Ohio July 5, 2022)*:
The officer bumped defendant on a bike. It was potentially a seizure, but “Under Hodari D. and Torres, the seizure thus ended when Daniels got up and began running down the driveway.” United States v. Daniels, 2022 U.S. Dist. LEXIS … Continue reading
Pleading guilty after the suppression hearing but before it was decided is waiver. People v. Lende, 2022 NY Slip Op 02581, 2022 N.Y. App. Div. LEXIS 2476 (3d Dept. Apr. 21, 2022). The stop here was with reasonable suspicion. Officers … Continue reading
“None of these allegations is sufficient to warrant a Franks hearing either. At bottom, Rodriguez is merely criticizing the tactics employed by the police during their investigation. See United States v. Swanson, 210 F.3d 788, 791 (7th Cir. 2000) (explaining … Continue reading
The address of the place to be searched in the warrant was 1013 Pleasant Street, second floor. The second floor, however, was 1015 Pleasant Street, and it was searched. The warrant is not to be view hypertechnically, and it adequately … Continue reading
E.D.Tenn.: Def doesn’t show a right to see whether the SW in his case was validly issued; that’s the lawyer’s call; and he pled guilty
“Petitioner alleges that Attorney Greene failed to present critical documents for Petitioner’s review prior to his guilty plea. Petitioner contends that he should have been shown ‘evidence of there being a valid search warrant,’ ‘computer chat logs where the government … Continue reading
“The Court notes that there is a dearth of caselaw on the issue of whether Xylazine qualifies as ‘drug paraphernalia.’ Regardless, as the weight of the evidence supports that Xylazine is frequently used as a diluent or cutting agent, the … Continue reading
“The trial court erred in denying Appellant’s motion in limine and allowing the State to present evidence and argument referencing Appellant’s refusal to provide his cellphone PIN and his refusal to consent to a warrantless search of his entire cellphone. … Continue reading
The district court did not plainly err in allowing supervised release searches of defendant’s computer for a gun crime. U.S.S.G. § 5D1.3(d)(7). Under precedent, a search condition does not have to be specifically related to the crime. United States v. … Continue reading
D.Mass.: SW for def’s old car and iPhone on two-year-old information they were maybe connected to a murder was stale and probative of little; no GFE either
There was no probable cause for the search of defendant’s house for evidence of a nearly two-year-old murder. Even if what was sought was there, it was highly unlikely it would prove anything. Finally, the probable cause was so lacking … Continue reading