The Not So Gradual Erosion of the 4th Amendment at the Hands of Well Intentioned Laws

[Quantum Windbag]

I think we are on the same page when it comes to laws that legislate morals or personal habits.

The only thing I was objecting to was your "if you don't like it, go somewhere else" statement. Let's not get off track here - the main point of argument had to do with authoritarianism. And I repeat - "if you don't like it, go somewhere else," is an authoritarian statement.

I will admit it can be.

Also, let's not forget the theme of this thread - which is the erosion of the 4th Amendment's prohibition against illegal search and seizure, by laws and policies such as check points, cell phone restriction laws, search and seizure conditions of probation regardless of the triggering offense, etc.

Anti-smoking laws have little or nothing to do with this theme. Whether or not anti-smoking laws are a good thing or a bad thing is an issue, but not an issue appropriate to this thread. How did we get off on that one anyway?

Oh, I think I remember - someone brought up "authoritarianism." Now THERE's an excellent topic for its own thread. I ran one on that topic on another board. It was violently ripped apart by conservatives who claimed they weren't the least bit authoritarian.

Depends, since some jurisdictions actually ban smoking in private vehicles or homes, or are at least trying to, I could argue that they are 4th amendment violations.

 

[George Costanza]

The whole point of the OP was to call attention to the fact that there is more to seemingly justifiable laws than meets the eye. Checkpoints are relatively new in this country. Cell phone laws also. Seat belt laws have been around a while, but they fall into the same classification. These are all laws that give the police additional reasons to stop and detain motorists in addition to the "tried and true" reason of stopping them for plain, old traffic violations.

I submit that most of the good citizens who consider these "in addition to" laws, consider them to be good things, with a good purpose behind them. And, on their face, they are. Who can argue in favor of drunk drivers or cell phone talkers or people who don't use seat belts?

However, there is a darker side (if you will) to laws such as these, that is probably never even considered by the good citizens who piously champion their enactment - and that is the plain fact that such laws also serve as a means of "expanding" law enforcement significantly and providing the police with new and different justifications for stopping vehicles, looking into them during the stop, "chatting" with the drivers and, generally, poking around where they otherwise would not be able to poke.

We don't think about that. You can bet they do.

 

[lawbuff]

When the Court says "we hold that it is consistent with the Fourth Amendment," it is not necessarilly saying that checkpoints do not violate the 4th Amendment. Rather, it is saying that the "intrustion upon individual motorists who are briefly stopped" is so slight, that even though there is a violation, the violation is not of a sufficient nature to render checkpoints inconsistent with the Fourth Amendment.

I know, I know - it doesn't say that in so many words, at least not in this quote. But if you read the entire opinion, that meaning becomes abundantly clear.

I don't see it that way, if it were as such, then DL checkpoints would have been given the same scrutiny.

Random stops to check on a persons DL were struck down, but the court ruled in Prouse that the decision does not preclude states from having controlled CP's.

Random DUI stops without individualized suspicion are not permitted, but controlled stops are.

In Edmonson, they struck down Drug interdiction CP's. You would think the same criteria would have been used to justify them as DUI and DL?

The SC has often permitted de minimus intrusions where the 4th is not violated, such as ordering drivers and passengers out of a car. They ruled since the stop was legal under the 4th, the minimal intrusion of ordering a person out is not enough to strike the case down.

 

[George Costanza]

I will admit it can be.

Also, let's not forget the theme of this thread - which is the erosion of the 4th Amendment's prohibition against illegal search and seizure, by laws and policies such as check points, cell phone restriction laws, search and seizure conditions of probation regardless of the triggering offense, etc.

Anti-smoking laws have little or nothing to do with this theme. Whether or not anti-smoking laws are a good thing or a bad thing is an issue, but not an issue appropriate to this thread. How did we get off on that one anyway?

Oh, I think I remember - someone brought up "authoritarianism." Now THERE's an excellent topic for its own thread. I ran one on that topic on another board. It was violently ripped apart by conservatives who claimed they weren't the least bit authoritarian.

Depends, since some jurisdictions actually ban smoking in private vehicles or homes, or are at least trying to, I could argue that they are 4th amendment violations.

On what theory - that if smoking at home is banned, cops can go into a home where they suspect someone is smoking without a warrant and, in the course of doing so, are free to make arrests based on any contraband they see in open sight during the entry?

If you were to argue that way, I would agree with you that a law such as that was simply a ruse for allowing police into private homes in violation of the 4th.

 

[Quantum Windbag]

The whole point of the OP was to call attention to the fact that there is more to seemingly justifiable laws than meets the eye. Checkpoints are relatively new in this country. Cell phone laws also. Seat belt laws have been around a while, but they fall into the same classification. These are all laws that give the police additional reasons to stop and detain motorists in addition to the "tried and true" reason of stopping them for plain, old traffic violations.

I submit that most of the good citizens who consider these "in addition to" laws, consider them to be good things, with a good purpose behind them. And, on their face, they are. Who can argue in favor of drunk drivers or cell phone talkers or people who don't use seat belts?

However, there is a darker side (if you will) to laws such as these, that is probably never even considered by the good citizens who piously champion their enactment - and that is the plain fact that such laws also serve as a means of "expanding" law enforcement significantly and providing the police with new and different justifications for stopping vehicles, looking into them during the stop, "chatting" with the drivers and, generally, poking around where they otherwise would not be able to poke.

We don't think about that. You can bet they do.

Some of us do.

In fact, I have a new thread percolating about just that.

 

[lawbuff]

Why watch out? That is exactly what the Court is supposed to, render an OPINION about the COTUS. I mean obviously there is noway to know for fact how TJ would have felt about sobriety checkpoints, but there is a way to know he and others were smart enough to plan for such things.

If TJ is Thomas Jefferson, why are you singling him out??

 

[MikeK]

Nice piece, George.

Have you visited this site: Botched Paramilitary Police Raids

 

[ConHog]

Why watch out? That is exactly what the Court is supposed to, render an OPINION about the COTUS. I mean obviously there is noway to know for fact how TJ would have felt about sobriety checkpoints, but there is a way to know he and others were smart enough to plan for such things.

If TJ is Thomas Jefferson, why are you singling him out??

Simply because he was arguably the most scholarly of the FF. I obviously didn't mean exclusively TJ.

 

[ConHog]

When the Court says "we hold that it is consistent with the Fourth Amendment," it is not necessarilly saying that checkpoints do not violate the 4th Amendment. Rather, it is saying that the "intrustion upon individual motorists who are briefly stopped" is so slight, that even though there is a violation, the violation is not of a sufficient nature to render checkpoints inconsistent with the Fourth Amendment.

I know, I know - it doesn't say that in so many words, at least not in this quote. But if you read the entire opinion, that meaning becomes abundantly clear.

I don't see it that way, if it were as such, then DL checkpoints would have been given the same scrutiny.

Random stops to check on a persons DL were struck down, but the court ruled in Prouse that the decision does not preclude states from having controlled CP's.

Random DUI stops without individualized suspicion are not permitted, but controlled stops are.

In Edmonson, they struck down Drug interdiction CP's. You would think the same criteria would have been used to justify them as DUI and DL?

The SC has often permitted de minimus intrusions where the 4th is not violated, such as ordering drivers and passengers out of a car. They ruled since the stop was legal under the 4th, the minimal intrusion of ordering a person out is not enough to strike the case down.

Drug interdiction stops were and are judged not to be effective in taking immediate dangers off the road the way sobriety check points do, and hence the difference in their legality.

 

[lawbuff]

Drug interdiction stops were and are judged not to be effective in taking immediate dangers off the road the way sobriety check points do, and hence the difference in their legality.

You would think though, since DUI also means driving while on MJ or other substances, such would have been upheld?

What about checkpoints to stop motorists to see if they have any info on a major felony committed in the area.

They were upheld, but do not have any compelling govt. highway interest.

 

[George Costanza]

When the Court says "we hold that it is consistent with the Fourth Amendment," it is not necessarilly saying that checkpoints do not violate the 4th Amendment. Rather, it is saying that the "intrustion upon individual motorists who are briefly stopped" is so slight, that even though there is a violation, the violation is not of a sufficient nature to render checkpoints inconsistent with the Fourth Amendment.

I know, I know - it doesn't say that in so many words, at least not in this quote. But if you read the entire opinion, that meaning becomes abundantly clear.

I don't see it that way, if it were as such, then DL checkpoints would have been given the same scrutiny.

Random stops to check on a persons DL were struck down, but the court ruled in Prouse that the decision does not preclude states from having controlled CP's.

Random DUI stops without individualized suspicion are not permitted, but controlled stops are.

In Edmonson, they struck down Drug interdiction CP's. You would think the same criteria would have been used to justify them as DUI and DL?

The SC has often permitted de minimus intrusions where the 4th is not violated, such as ordering drivers and passengers out of a car. They ruled since the stop was legal under the 4th, the minimal intrusion of ordering a person out is not enough to strike the case down.

There is simply a judicial temperment these days that allows checkpoints, even though they clearly are in violation of the 4th. How can you justify stopping and questioining the driver of a car, merely because he is driving a car along a highway without any indication whatsoever to think he is engaged in any criminal activity? That is simply a stop without probable cause or even reasonable suspicion. It violates the 4th.

How do the courts pull it off? By invoking a "balancing" analysis. Sounds great, doesn't it? Of course "balancing" means nothing more than rationalization when courts want to arrive at a decision and are determined to find a way to do so.

The Michigan decision discussed rolling random stops v. checkpoints in the context of potential fear on the part of motorists, and held that rolling random stops generate much more fear than checkpoints where it is obvious what is going on, motorists can see other motorists stopped ahead of them, etc.

Starting around 1980, and continuing very much to the present, the mood of our country swung over to law and order. This mood has very much been reflected by the judicial appointments that have been made across the land and onto the Supreme Court. It is no surprise that subjective rulings such as the "balancing" that is done in the checkpoint cases, come down in favor of "law and order." Conservative governors (and presidents) make for conservative judges and conservative judges make for conservative rulings.

Rulings upholding checkpoints are such rulings.

 

[lawbuff]

Why watch out? That is exactly what the Court is supposed to, render an OPINION about the COTUS. I mean obviously there is noway to know for fact how TJ would have felt about sobriety checkpoints, but there is a way to know he and others were smart enough to plan for such things.

If TJ is Thomas Jefferson, why are you singling him out??

Simply because he was arguably the most scholarly of the FF. I obviously didn't mean exclusively TJ.

Clearly he was a polymath, but was not a delegate to the Constitutional convention.

My choice would have been James Madison.

 

[ConHog]

Drug interdiction stops were and are judged not to be effective in taking immediate dangers off the road the way sobriety check points do, and hence the difference in their legality.

You would think though, since DUI also means driving while on MJ or other substances, such would have been upheld?

What about checkpoints to stop motorists to see if they have any info on a major felony committed in the area.

They were upheld, but do not have any compelling govt. highway interest.

Drug Interdiction stops were not designed to find people who were driving while high on MJ, or whatever, those are what sobriety checkpoints are for, not just booze.

The situation of stopping people in the area of a major felony. Well, way to be not quite honest. Those stops aren't used to gather information, they are used to determine if the perpetrator(s) are in your vehicle. And obviously THAT provides quite a bit of safety to the public in exchange for a very small intrusion, unless of course you are doing something illegal yourself.

I know many want to ignore this simple cold fact, but the truth is if you aren't doing something wrong, you have nothing to fear from being scrutinized by the police, regardless of what George will tell you.

 

[ConHog]

If TJ is Thomas Jefferson, why are you singling him out??

Simply because he was arguably the most scholarly of the FF. I obviously didn't mean exclusively TJ.

Clearly he was a polymath, but was not a delegate to the Constitutional convention.

My choice would have been James Madison.

Madison may be the most under rated President in our history. I'll agree that he would be a good choice as the "front man" for the Constitutional convention.

 

[Kyleigh Maria]

There is a hidden agenda to these "acceptable" practices that, on their face, appear benign and actually beneficial to society. A guillible public accepts them as such. But those of us who deal with the criminal justice system on a daily basis know better. These laws are enacted for a purpose that transcends their apparent justification. That purpose is to allow law enforcement to do things it would not otherwise be able to do because of the 4th Amendment prohibition against illegal search and seizure.

That's not inaccurate, George. The part you didn't highlight was that it's another tool to catch the bad guys. Its not a threat to those of us who don't do anything wrong. If I get pulled over for talking on a cell phone in a state that has a law against talking on the cell phone and my car gets searched, know what I'm going to get? I'm going to get a ticket for talking on the cell phone. Know why? Cause I'm not a two strike meth head with drugs in my pocket.

I understand what you are saying. I also understand that innocent people may become victims of some abuse of these statutes. But George? We are all currently victims of the criminals now. Which one is worse?

 

[George Costanza]

Here's one for ya. I'm told this actually happened. Fla cops put a big sign up just inside the northern border, designed to be read by south-bound traffic coming into Florida. Sign says: "Drug Inspection Station Ahead - Prepare to Stop." The sign is just in front of a big curve in the road.

There isn't any drug inspection station. What here IS, however, is a big, old police car waiting behind some bushes, watching for cars coming down the highway that read the sign and then make an (illegal) U-turn. When that happens, they pull them over.

When a car makes a U-turn to avoid a "drug inspection station," is that PC to search the car? I think it should be, don't you?

Pretty clever, hey?

 

[lawbuff]

George, searches without warrants are facially and clearly forbidden by the 4th, yet they are also permitted.

 

[George Costanza]

The part you didn't highlight was that it's another tool to catch the bad guys. Its not a threat to those of us who don't do anything wrong.

Kyleigh, Kyleigh, Kyleigh . . . "If I'm not doing anything wrong, I have nothing to fear from the police."

Wrong.

 

[George Costanza]

George, searches without warrants are facially and clearly forbidden by the 4th, yet they are also permitted.

Consensual searches and searches under exigent circumstances are searches without warrants, and they are permissible under the 4th. You know that.

 

[Bfgrn]

Jebus H Rice... You just don't get it. When discussing the 4th Amendment, and then to go off with the equivalent of demanding to know the airspeed velocity of an unladen Swallow, African OR European, you are not engaging in debate, but distraction. To ignore the question is not only polite but the intelligent thing to do. No matter how many graphs, sources and quotes you find about whether a swallow is unladen or burdened by a coconut is irrelevant.

The graphs and charts show that the air speed of a 'police state' is about to break the sound barrier. So it IS relevant.

The fact that America incarcerates more human being per 100,000 citizens than Russia or China SHOULD make you look up in the sky to see that coconut heading our way. Plus I have a cranium, you only have a pea...so beware...

BUt but but... charts... and graphs!.... they're pretty... and and.... see? Lines!

Debunked charts and graphs and lines you hack. Do you keep thinking the more you post it you'll get away with lying like this? The definition of insanity is doing the same thing over and over again and expecting a different result. At least I expect every time this is posted again VERBATIM... it will be debunked again.

Who's insane here? Now go goosestep on over to the rest of your little playtards at the Daily Kos where you will be loved or gulaged for your failure.

You have not debunked anything big fizzle. You are making an ass out of yourself.

Why don't you educate yourself before you emote?

U.S. Bureau of Justice Statistics Bulletin NCJ221944 - http://bjs.ojp.usdoj.gov/content/pub/pdf/pim07.pdf