{"id":9760,"date":"2013-11-10T11:59:26","date_gmt":"2013-11-09T09:15:49","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2013-11-09T09:15:49","slug":"en-US","status":"publish","type":"post","link":"https:\/\/fourthamendment.com\/?p=9760","title":{"rendered":"Fourth Amendment Not Dead Yet"},"content":{"rendered":"

Despite the laments from most in the criminal defense bar, the Fourth Amendment is \u201cnot dead yet.\u201d<\/a><\/p>\n

The pace of decisions since August has increased. I get a document dump from Lexis every morning. For the last two months, Tuesday-Saturday averages (just a guess) 20-25 new cases a day from all court sources that post to Lexis: U.S. District Courts, some state trial courts (more notably MA, NY, DE, RI, VI), and all the appellate courts in the U.S. Civil cases at the trial level aren’t covered anymore because there are too many of them, and I have a day job. It’s hard enough covering the criminal cases, and some weekday mornings I have court to prepare for. <\/p>\n

But the sheer number of cases that come out shows that lawyers and courts have not given up on the Fourth Amendment. Yes, the limiting of the exclusionary rule and the growth of the good faith exception and qualified immunity make it harder to win, but we keep trying, and we keep winning some. Once and awhile, something earthshaking occurs, like 2012’s United States v. Jones<\/a> that creates new litigation possibilities. (See \u00a7\u00a7 3.05<\/a>\u20133.07 of the Fifth Edition) How many cases just die in the trial court because a suppression motion was granted and never appealed? Or the plea offer got really good after a losing motion to suppress where the prosecutor doesn’t want to defend an appeal? None of those end up in reported decisions. And I’ve had a few.<\/p>\n

My hat\u2019s off to American criminal defense lawyers: Keeping the Fourth Amendment alive through litigation. We’ve come so far since James Otis, Jr. argued Paxton\u2019s Case, the Writs of Assistance case in Boston Superior Court, Tuesday, February 24, 1761 where he said: \u201c[T]he liberty of every man [is] in the hands of every petty officer,\u201d quoted in Boyd v. United States<\/a>, 116 U.S. 616, 625 (1886). (See \u00a7 1.03<\/a> of the Fifth Edition) We can say that today about the NSA, or any traffic stop.<\/p>\n

Everyday, somebody prevails on a Fourth Amendment claim because the government overreached. It\u2019s how we as lawyers keep the government in check. It\u2019s our calling; it\u2019s our duty to the law. I figured that out in college in the late 60’s. <\/p>\n","protected":false},"excerpt":{"rendered":"

b2evALnk.b2WPAutP Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":3,"featured_media":0,"comment_status":"","ping_status":"pingsdone","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[],"tags":[],"class_list":["post-9760","post","type-post","status-publish","format-standard","hentry"],"_links":{"self":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/9760","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=9760"}],"version-history":[{"count":0,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/9760\/revisions"}],"wp:attachment":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=9760"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=9760"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=9760"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}