- IL: Circumstances made SW affidavit admissible at trial
- Professional Responsibility in Criminal Defense Practice (4th ed. 2023) now on Westlaw
- IN: Fundamental (plain) error of S&S claims requires the evidence be fabricated, not just unconstitutionally obtained
- USA Today: A camera mounted on a light pole took video of police beating Tyre Nichols. What to know about ‘SkyCop.’
- Galveston Co. Daily News: Galveston SWAT team wrecks wrong house in search for wrong suspect
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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: Cell site simulators
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
The justification for a nighttime search warrant was insufficient as a matter of law. The mere presence of people in the house is not exigency. State v. Harrison, 2022 Del. Super. LEXIS 302 (July 14, 2022). The USMJ found defendant … Continue reading
Bustle: This Netflix Doc Shows How An IRS Scammer Uncovered Secret Spy Technology by Gretchen Smail (referring to Stringray):
Defendant’s 2255 claim that the government used a cell site simulator prior to Carpenter to capture his unlisted burner phone numbers is saved by the good faith exception. Powell v. United States, 2021 U.S. App. LEXIS 9850 (6th Cir. Apr. … Continue reading
CA3: Warrant for roving wiretap didn’t have to call device a “cell site simulator” when it fully described it
The government obtained a roving wiretap for defendant’s cell phone with a cell site simulator. In the warrant application, they described in detail what a cell site simulator was, but it never said the words “cell site simulator.” It doesn’t … Continue reading
A warrant supported by ample probable cause was used for a cell site simulator to find defendant’s cell phones. No conversations were captured. The USMJ compared it to a tracking warrant, which wasn’t unreasonable. The warrant was also constitutionally particular. … Continue reading
Use of cell site simulator merely to capture defendant’s cell phone numbers and not to track him was reasonable because he had no reasonable expectation of privacy in his numbers. United States v. Powell, 2020 U.S. Dist. LEXIS 120229 (E.D. … Continue reading
Plaintiff sued because the Baltimore Police Department used a cell site simulator to locate him, and that violated the Fourth Amendment. The district court’s findings are based on an inadequate record and the case is remanded for more factfinding. Andrews … Continue reading
FL4: Use of cell site simulator under CSLI order 4A violation; no GFE because of lack of contrary authority
In 2012, well before Carpenter, the police used a cell site simulator under CSLI order to track defendant. There was no binding authority at the time for the state to rely on. By the time this case reaches appeal, the … Continue reading
A “fare sweep” on an MTA train in Baltimore led to defendant being detained. Officers ran his name and found a record. At a station, a scuffle ensued, one of the officers shouted “gun” and defendant was wrestled to the … Continue reading
Shawdowproof: Detroit Police Spent More than Half Million Dollars on Cell-site Simulator to Track People’s Locations
Shawdowproof: Detroit Police Spent More than Half Million Dollars on Cell-site Simulator to Track People’s Locations by Camille Fassett:
The use of a cell site simulator with a search warrant to locate defendant’s cell phone was reasonable. The issue on appeal was whether the trial court abused its discretion in denying a motion to continue while the defense tried … Continue reading
The Hill: Are the Chinese and Russians listening to your phone calls? by Julian Gehman with cell site simulators? I’m not worried about them listening to mine because I only bitch about Russians and I’m 1,000 miles away, but too … Continue reading
The use of a Stingray cell site simulator to find defendant to find him to arrest him didn’t violate the Fourth Amendment. Even if it did, the good faith exception makes it valid here. Andres v. State, 2018 Fla. LEXIS … Continue reading
Warrantless use of a cell site simulator to capture cell phone calls violates the Fourth Amendment. That information was used to get a search warrant for CSLI. State v. Sylvestre, 2018 Fla. App. LEXIS 12671 (Fla. 4th DCA Sep. 6, … Continue reading
WaPo: FBI surveillance devices may interfere with 911 calls, U.S. senator says by Aaron Gregg: In a letter to the Justice Department, Sen. Ron Wyden raised the concern that Stingray phone surveillance devices could “completely disrupt” cell services, citing conversations … Continue reading
Plaintiff’s claim that he was the subject of unlawful surveillance with a Stingray survives a Heck challenge and can proceed. Marcantoni v. Bealefeld, 2018 U.S. App. LEXIS 22798 (4th Cir. Aug. 16, 2018):