- D.Md.: Def did not go to trial because counsel misstated the chances of success of a suppress motion
- N.D.Ind.: Typo in SW home address was cured by picture of house
- E.D.Ark.: Def’s statements disassociating himself from the premises searched showed no standing
- CA11: Reasonable mistake of law on basis for stop was not 4A violation
- M.D.La.: Car could be searched when it was stopped near home being searched with SW
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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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Monthly Archives: February 2022
Defendant’s Carpenter argument against police capturing his GPS information fails. SCOTUS hasn’t ruled yet, but existing law permits it. United States v. Rogers, 2022 U.S. Dist. LEXIS 33869 (N.D.Ga. Feb. 25, 2022):
“[T]he Court finds that the evidence is materially credible and consistent and, taken as a whole, indicates that it appeared very likely that law-enforcement activity had been detected by the time of the warrantless entry, that there was a high … Continue reading
This proposed geofence warrant fails both probable cause for what it seeks to capture and particularity. In re Info. Stored at the Premises Controlled by Google, 2022 Va. Cir. LEXIS 12 (Fairfax Co. Feb. 24, 2022):
S.D.W.Va.: AUSAs apparently failed duty to court to mitigate this Brady/Giglio issue before it reared its head
The court’s finding of the officer’s recklessness in this search warrant affidavit leads the government to file a motion to reconsider, presumably because it will become Brady/Giglio material in future cases as to the officer. Not only is that denied, … Continue reading
Based on the smell of drugs when executing a search warrant, the officers had the authority to detain the occupants. Linsey v. State, 2022 Tenn. Crim. App. LEXIS 79 (Feb. 25, 2022). Defendant’s stop was reasonable. Shots had been reported … Continue reading
“Defendant spent the night at the Apartment and was found by law enforcement sleeping in a bed. His alleged illegal activities in the Apartment do not render his expectation of privacy unreasonable.” He has standing. United States v. Santini, 2022 … Continue reading
D.Nev.: SW clearly did not authorize downloading of iPhone and iPad at the place of search; no good faith exception
The officer thought the warrant authorized downloading on the premises, but it obviously did not. This is gross negligence, and the good faith exception does not apply. Defendant wasn’t in custody and was not entitled to a Miranda warning when … Continue reading
“Granted, the drug sale did not occur inside the residence. Rather, it occurred outside the residence, in the backyard. The question, then, is whether a controlled purchase that took place in the yard of a house in which the drug … Continue reading
Plaintiff’s claim that a forcible entry for a misdemeanor warrant fails because this circuit has held for 25 years that Payton applies to misdemeanor warrants. Plaintiff does state a claim, however, for failure to knock-and-announce before entry. First v. Hokett, … Continue reading
A question to a motorist about tattoos during a stop because they might have been prison tattoos wasn’t shown to be related to officer safety and was thus unreasonable. “Here, the circuitous, propensity-based inquiry about defendant’s incarceration history was predicated … Continue reading
Search of defendant’s bag when he was handcuffed behind his back and lying face down was unreasonable because it was unreachable. United States v. Buster, 2022 U.S. App. LEXIS 4747 (4th Cir. Feb. 22, 2022). When omitted information is relied … Continue reading
A 12 hour delay past the 48 hour McLaughlin rule for a finding of probable cause was not shown to be unreasonable because of Covid delays and the temporary shutdown of the St. Louis federal courthouse for cleaning. United States … Continue reading
A governmental actor taking a child from the home is determined under the Fourth Amendment if substantive due process does not apply. Brokaw v. Mercer County, 235 F.3d 1000, 1017-18 (7th Cir. 2000). H.P. v. Kelley, 2022 U.S. Dist. LEXIS … Continue reading
“[T]he court must conclude that probable cause existed to seize Kurland’s phone at the time of his arrest and that the plain view exception permitted the government to seize it. To be sure: simply seeing a device in plain view … Continue reading
It is also the 262d anniversary of the argument in Paxton’s case, something I note every year. Visiting the Old Boston State House and seeing the exhibit of the court argument will make an impression.
Another officer stopping the defendant under the collective knowledge doctrine at least has to be informed of what the “knowledge” is that warrants the stop. Without it, no reasonable suspicion. United States v. Roman, 2022 U.S. Dist. LEXIS 30416 (D.Conn. … Continue reading
When a Franks challenge is based on omissions, the bar is higher. Here, defendant didn’t meet it. United States v. McCoy, 2022 U.S. Dist. LEXIS 30230 (E.D.Mich. Feb. 18, 2022):
Above the Law: Broken Tail Lights? You Should Get That Fixed, But Should You Get Pulled Over? by Chris Williams (Feb. 22, 2022):
Bloomberg Law: Justices Decline to Hear Home Surveillance Privacy Case (Feb. 22, 2022), referring to United States v. Tuggle, 4 F.4th 505 (7th Cir. 2021)