A while back I wrote about a case where the 4th Circuit determined that the government should not be allowed to infer that every innocent action has nefarious overtones. The case, U.S. v. Foster, I thought, perhaps, signaled a shift in the Court’s incredibly conservative mindset and, perhaps, a resurrection of some of the basic tenets of the fourth amendment. You know, like no unreasonable search and seizure. So, while I remained hopeful, I went on my merry way as I think did most of my brothers and sisters in this district. After all, our circuit is notorious for being adverse to just about anything a defendant may have to say. We were afraid to be too optimistic in case this was a one off – a case so extreme that even this court couldn’t brush it off.
There are currently four Obama appointees on the Circuit. And, while I’m one of those that thinks Obama has been quite a disappointment, I can’t help but think that maybe the Foster decision, and the more recent one in U.S. v. Doyle is, indeed, signalling that a change is coming. Doyle is a child pornography case, and who doesn’t hate child pornography? In this case, police officers got a warrant to search for kiddie porn after getting information that Doyle molested some children. One of the children said they were shown pictures of nude children. The warrant did not mention nude children, and it certainly didn’t say that there was any pornography. In any event, a district court judge signed the warrant. Evidence was found. A magistrate judge recommended suppression, but the district court said no. The fourth circuit said yes, suppression was warranted. While the language in Doyle is not as sweeping as that in Foster, it is still pretty good for us on this side of the aisle. The decision is narrow, but still useful and, perhaps, trial judges won’t be so quick to just rubber stamp anything and everything the cops do thinking “there is no way the 4th circuit is going to reverse this – it’s the 4th circuit after all!”
I gave a quick interview recently about this case and compared and contrasted it to the Foster case. The reporter asked what I thought it meant for us practitioners and I said I didn’t think it meant much of anything really, we just had to keep making the motions. But, I have to admit to thinking it would be pretty amazing if the most conservative circuit in the country led the charge to put some life back into the fourth amendment. After all, what could be more conservative than honoring and abiding by the constitution?
