The N.D. Ohio holds that child porn is presumptively retained by the holder, so a search warrant for child porn is seldom found stale. Brothers v. County of Summit, 2007 U.S. Dist. LEXIS 38468 (N.D. Ohio May 25, 2007):
With regard to allegations of child pornography, the courts have found probable cause was not stale because it is presumed that such material is securely retained by the suspect. See United States v. Summage, 481 F.3d 1075, 2007 WL 1052456 *3 (8th Cir. 2007); U.S. v. Koelling, 992 F.2d at 823 (pedofile presumed to maintain pornography collection); United States v. Hay, 231 F.3d 630, 636 (9th Cir. 2000) (information that was six months old was not stale); U.S. v. Lacy, 119 F.3d 742, 746 (9th Cir. 1997) (information that was 10 months old was not stale). Since there is no “bright line” standard for measuring staleness and case law has permitted use of evidence as old as 10 months old in child pornography prosecutions, then plaintiffs have not demonstrated a constitutional violation.
Plaintiff survives summary judgment on warrantless search based on her alleged consent which, remarkably, she videotaped and it showed her consenting under threat of arrest. Myers v. Halbleib, 2007 U.S. Dist. LEXIS 38577 (D. Neb. May 25, 2007):
This is an unusual case. Fifteen minutes after Myers permitted the officers to enter her home, and after the officers had several times attempted to obtain Myers’ consent to search the home, Myers made a video recording of her interaction with Defendants and that video recording is in evidence before the court. The video reflects that when Myers asked “[A]re you tellin’ me … that if I don’t let you guys search my house I’m gonna be arrested,” Halbleib replied “[a]bsolutely, yes.” (DVD Tr. 4:16-24 (emphasis added).) Later, Myers gave permission for Baker to search her home. Obviously, the voluntariness of this consent is at issue. “[W]hether a consent to a search was in fact ‘voluntary’ or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances.” Schneckloth, 412 U.S. at 227. Consent may not be coerced by implied threat or covert force, id. at 228, and certainly not by direct threats or force.
Myers contends that her consent was involuntary because she understood Officer Halbleib to have threatened her with arrest if she refused consent to search, she was physically intimidated when Officer DeSanti tried to handcuff her, and because the officers continued to request consent to search despite her repeated refusals. n3 (Filing 40 at 13.) Defendants assert that although Halbleib said “absolutely, yes” when Myers asked if she would be arrested if she refused consent, Halbleib threatened arrest not because Myers refused consent to search but because Myers’ refusal to answer questions obstructed the investigation into the search for the missing girl. (Filing 55 at 5, 19.) Thus the ultimate question of fact–voluntariness of consent–is in dispute. In addition, there is a dispute as to a key underlying fact: whether DeSanti or Halbleib touched Myers in an attempt to handcuff her and whether she was handcuffed. (Myers Dep. 66:4-5 (DeSanti grabbed her and tried to put her in handcuffs); DeSanti Dep. 35:8-20 (DeSanti got his handcuffs out, but none of the officers “put their hands on Ms. Myers”).) Because there is clearly a factual dispute as to the voluntariness of consent, I cannot grant summary judgment on this issue.
Pushing the plaintiff down to a bed from which she stood up did not qualify as excessive force. Gonzalez v. Cameron County, 2007 U.S. Dist. LEXIS 38598 (S.D. Tex. May 29, 2007).*
Court refuses to reconsider its refusal to assume “anamolous jurisdiction” over property taken in a seizure. The complaining party has not shown that it will be irreparably harmed, and it still has remedies for recovery of the property. In re Seizure of Various Bus. & Personal Prop., 2007 U.S. Dist. LEXIS 38553 (E.D. Wash. May 29, 2007).*
(A lot today; more later.)
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"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“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, Let it Bleed (album, 1969)
"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]
“Children grow up thinking the adult world is ordered, rational, fit for purpose. It’s crap. Becoming a man is realising that it’s all rotten. Realising how to celebrate that rottenness, that’s freedom.” – John le Carré, The Night Manager (1993), line by Richard Roper
"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." —Johnson v. United States, 333 U.S. 10, 13-14 (1948)
The book was dedicated in the first (1982) and sixth (2025) editions to Justin William Hall (1975-2025). He was three when this project started in 1978.
