Sunday, April 8, 2018

The government intended what it wrote


Image result for german shepherd“Many good Fourth Amendment stories begin with dogs[,]” writes Judge Thapar of the Sixth Circuit Court of Appeals. “And so it is here.” But the Sixth Circuit's decision in United States v. Perkins this last week does not actually focus on the conduct of a dog that alerted law enforcement to investigate a potential crime. Instead, Perkins poses the question that if courts are to read warrants in a common-sense fashion rather than hypertechnically, how does a court decipher between a common-sense construction of an anticipatory event and an unintended hypertechnicality that the court should overlook?
The answer is a simple one according to the Sixth Circuit: Common sense dictates that the government intended what it wrote.” Where the triggering event for an anticipatory warrant required delivery of a package to a specific person, at a specific place, a common-sense reading of the warrant requires that the package actually be delivered to that person, at that place.

The replace-some-words canon of construction has never caught on[,]the Sixth Circuit noted, affirming the district court’s grant of the defendant’s motion to suppress.

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