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

[lawbuff]

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 totally legal. You know that.

I know that, but the 4th does not say that, does it??

 

[Kyleigh Maria]

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.

Ok. Enlighten me, George. What do I have to fear? Please be specific.

 

[MikeK]

Ok. Enlighten me, George. What do I have to fear? Please be specific.

Incremental erosion of our Fourth Amendment protections.

 

[lawbuff]

Ok. Enlighten me, George. What do I have to fear? Please be specific.

Incremental erosion of our Fourth Amendment protections.

That is the purview of the courts, not police.

If we become a police state under the 4th, then the states need to step in and provide more protection under thier S&S clauses, as some do.

DUI chekpoints are not permitted in every state, nor are DL CP's.

My state, Ohio, provides MORE protection from a warrantless arrest for a crime punishable by a money fine only, no jail time, yet, Atwater v. Lago Vista permits it under the 4th AM.

The 4th permits the search of a persons curbside trash without a warrant, yet some states demand one under thier own Constitutions.

 

[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.

Ok. Enlighten me, George. What do I have to fear? Please be specific.

False evidence which magically "appears" during the search you consented to. Statements attributed to you during the search which you never made. Corrupt police officers, intent upon putting YOU behind bars for whatever reason(s) they may have.

You argument here of "If I have done nothing wrong, then I have nothing to fear," assumes that the police never do anything wrong. They never become corrupt, never lie in order to obtain a conviction, that they only operate for the good of the citizenry in general.

The 4th Amendment guarantees to ALL citizens the right to be free from unreasonable search and seizure. That's no accident. It doesn't say "only the guilty citizens" - it says ALL citizens. The reason for that is precisely what I have been saying in the preceding paragraphs. The Founding Fathers recognized that police can become corrupt and they did not want a society where people would fear the police. "Power corrupts. And absolute power corrupts absolutely." Police have absolute power.

 

[Kyleigh Maria]

You argument here of "If I have done nothing wrong, then I have nothing to fear," assumes that the police never do anything wrong. They never become corrupt, never lie in order to obtain a conviction, that they only operate for the good of the citizenry in general.

I believe that's true 99.99% of the time, George. And I also agree that even .01% is unacceptable. Unfortunately, I don't have a better idea.

 

[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 totally legal. You know that.

I know that, but the 4th does not say that, does it??

Let's not parse phrases here. No, the 4th does not say that consensual and exiigent searches are permissible. The 4th does not say that ANY searches are permissible - only that UNREASONABLE searches and seizures are IMpermissible.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

You stated: "searches without warrants are facially and clearly forbidden by the 4th." Wrong. Unreasonable searches are the only thing forbidden by the 4th. The Amendment then goes on to say that no Warrants shall be issued except upon probable cause, and stating other requirements for issuance of the warrant.

Consensual and exigent circumstance searches have evolved through case law and are recognized as being "reasonable" within the ambit of the 4th Amendment.

 

[lawbuff]

You argument here of "If I have done nothing wrong, then I have nothing to fear," assumes that the police never do anything wrong. They never become corrupt, never lie in order to obtain a conviction, that they only operate for the good of the citizenry in general.

I believe that's true 99.99% of the time, George. And I also agree that even .01% is unacceptable. Unfortunately, I don't have a better idea.

You may not have been born when Serpico exposed the NYC police department.

 

[lawbuff]

Consensual searches and searches under exigent circumstances are searches without warrants, and they are totally legal. You know that.

I know that, but the 4th does not say that, does it??

Let's not parse phrases here. No, the 4th does not say that consensual and exiigent searches are permissible. The 4th does not say that ANY searches are permissible - only that UNREASONABLE searches and seizures are IMpermissible.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

You stated: "searches without warrants are facially and clearly forbidden by the 4th." Wrong. Unreasonable searches are the only thing forbidden by the 4th. The Amendment then goes on to say that no Warrants shall be issued except upon probable cause, and stating other requirements for issuance of the warrant.

Consensual and exigent circumstance searches have evolved through case law and are recognized as being "reasonable" within the ambit of the 4th Amendment.

......The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized....

Conjunctively, any search without a warrant is UNreasonable! Agree or not?

 

[George Costanza]

The argument that 1% of the police are rotton and 99% (or whatever) are good cops, is somewhat misguided. My experience has been that the vast majority of police officers are capable of being honest, courteous and damn good cops. But, at the same time, that same majority of police officers also have the capacity to lie, brutalize and be very bad cops. It largely depends on who they are dealing with.

If they are dealing with us "good guys," they are nice, polite and act like the good police officers they are being at the moment. Those same officer, however, become instantly not so nice and polite, if they are dealing with a "bad guy." We only see thier good side in our normal, day to day lives.

I see their bad side through the eyes of my clients.

 

[George Costanza]

I know that, but the 4th does not say that, does it??

Let's not parse phrases here. No, the 4th does not say that consensual and exiigent searches are permissible. The 4th does not say that ANY searches are permissible - only that UNREASONABLE searches and seizures are IMpermissible.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

You stated: "searches without warrants are facially and clearly forbidden by the 4th." Wrong. Unreasonable searches are the only thing forbidden by the 4th. The Amendment then goes on to say that no Warrants shall be issued except upon probable cause, and stating other requirements for issuance of the warrant.

Consensual and exigent circumstance searches have evolved through case law and are recognized as being "reasonable" within the ambit of the 4th Amendment.

......The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized....

Conjunctively, any search without a warrant is UNreasonable! Agree or not?

Not. I don't think the 4th says what you are trying to make it say. It is divided into two parts. The first part prohibits unreasonable searches and seizures. The second part sets forth the requirements for issuing warrants. The two parts are not interrelated. I think you are trying to say they are. I don't think the use of the word "and" creates the interrelation you are reading into it.

Hold it. You may be right. Back in a second.

OK - you are right. All searches without a warrant are presumed to be unreasonable. However, case law has carved exceptions into this rule in the case of consent searches and exigent circumstances.

That better?

Great discussion, my man! Gotta be away for a while. Check later.

 

[lawbuff]

Let's not parse phrases here. No, the 4th does not say that consensual and exiigent searches are permissible. The 4th does not say that ANY searches are permissible - only that UNREASONABLE searches and seizures are IMpermissible.



You stated: "searches without warrants are facially and clearly forbidden by the 4th." Wrong. Unreasonable searches are the only thing forbidden by the 4th. The Amendment then goes on to say that no Warrants shall be issued except upon probable cause, and stating other requirements for issuance of the warrant.

Consensual and exigent circumstance searches have evolved through case law and are recognized as being "reasonable" within the ambit of the 4th Amendment.

......The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized....

Conjunctively, any search without a warrant is UNreasonable! Agree or not?

Not. I don't think the 4th says what you are trying to make it say. It is divided into two parts. The first part prohibits unreasonable searches and seizures. The second part sets forth the requirements for issuing warrants. The two parts are not interrelated. I think you are trying to say they are. I don't think the use of the word "and" creates the interrelation you are reading into it.

Hold it. You may be right. Back in a second.

OK - you are right. All searches without a warrant are presumed to be unreasonable. However, case law has carved exceptions into this rule in the case of consent searches and exigent circumstances.

That better?

Great discussion, my man! Gotta be away for a while. Check later.

Thanks, gotta go myself tonight, have to get up early to go to the hole, I mean work.

I got that from the SC itself "searches conducted without a warrant are presumptively or per se unreasonable".

Terry v. Ohio was one of the 1st cases we read in Criminal law, being from Ohio, the Prof emphasized it.

Have a good night all.

 

[Kyleigh Maria]

If they are dealing with us "good guys," they are nice, polite and act like the good police officers they are being at the moment. Those same officer, however, become instantly not so nice and polite, if they are dealing with a "bad guy." We only see thier good side in our normal, day to day lives.

Of course they do. Doesn't everyone? I don't interact with a drug dealer the same way I interact with my pastor.

 

[Kyleigh Maria]

I have to go, George. Thanks for the discussion. You've raised some good points and have given me something to think about.

 

[ConHog]

The argument that 1% of the police are rotton and 99% (or whatever) are good cops, is somewhat misguided. My experience has been that the vast majority of police officers are capable of being honest, courteous and damn good cops. But, at the same time, that same majority of police officers also have the capacity to lie, brutalize and be very bad cops. It largely depends on who they are dealing with.

If they are dealing with us "good guys," they are nice, polite and act like the good police officers they are being at the moment. Those same officer, however, become instantly not so nice and polite, if they are dealing with a "bad guy." We only see thier good side in our normal, day to day lives.

I see their bad side through the eyes of my clients.

That's because your clients are generally speaking CRIMINALS so of course the cops aren't their friends. It's amazing how many CRIMINALS hate my wife to, who is an absolute angel, but has a job to perform. They don't like that she puts their asses in jail. I can be a nice guy to George, but when a meth head attacks me , guess what ? He catches a beat down. But to see us out and about , we're just a normal couple and people aren't hating us as human beings because of our jobs. Good grief.

 

[Bfgrn]

I know that, but the 4th does not say that, does it??

Let's not parse phrases here. No, the 4th does not say that consensual and exiigent searches are permissible. The 4th does not say that ANY searches are permissible - only that UNREASONABLE searches and seizures are IMpermissible.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

You stated: "searches without warrants are facially and clearly forbidden by the 4th." Wrong. Unreasonable searches are the only thing forbidden by the 4th. The Amendment then goes on to say that no Warrants shall be issued except upon probable cause, and stating other requirements for issuance of the warrant.

Consensual and exigent circumstance searches have evolved through case law and are recognized as being "reasonable" within the ambit of the 4th Amendment.

......The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized....

Conjunctively, any search without a warrant is UNreasonable! Agree or not?

The motor vehicle exception was first established by the United States Supreme Court in 1925, in Carroll v. United States. The motor vehicle exception allows an officer to search a vehicle without a warrant as long as he or she has probable cause to believe that evidence or contraband is located in the vehicle.

The motor vehicle exception is based on the idea of a lower expectation of privacy in motor vehicles due to the regulations they are under. Additionally, the ease of mobility creates an inherent exigency. In Pennsylvania v. Labron the U.S. Supreme Court, stated, “If a car is readily mobile and probable cause exists to believe it contains contraband, the Fourth Amendment thus permits police to search the vehicle without more.”

The scope of the search is limited to only what area the officer has probable cause to search. This area can encompass the entire vehicle including the trunk. The motor vehicle exception in addition to allowing officers to search the vehicle also allows officers to search any containers found inside the vehicle that could contain the evidence or contraband being searched for. The objects searched do not need to belong to the owner of the vehicle. In Wyoming v. Houghton, the U.S. Supreme Court ruled that the ownership of objects searched in the vehicle is irrelevant to the legitimacy of the search.

Some state's constitutions require officers to show there was not enough time to obtain a warrant. With the exception of states with this requirement, an officer is not required to obtain a warrant even if it may be possible to do so.

 

[Quantum Windbag]

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.

It always amazes me that people say things like that. Why not turn it around and say that if I am not doing anything wrong the police have no basis to stop me. If I am not doing anything wrong they do not have probable cause to stop me. Why should I have to justify myself to someone when I am doing nothing wrong? No one can answer that question because they keep arguing that if I am not doing anything wrong I don't have to wrry.

That is not how it is supposed to work. The state is required to justify all its intrusions into my life even if I am doing something wrong, and then they are required to prove they were right to do so in court. Yet you shrug off this burden on my rights, and yours, because you think it makes you safer, despite the fact that there is no evidence that it does.

I do not care that you think it is fine for police to stop people for no reason because you feel unsafe without a night light and a security blanket. Not everyone needs the state to protect them from the big bad wolf, and I do not have to justify my resentment of police actions that violate my rights. On some level you know this, or you would not resort to an argument that shows you have nothing to offer to defend your position other than fascist talking points.

 

[Quantum Windbag]

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?

No it is not, and you know it. They can ask to search, and have to let them go if they say no.

 

[ConHog]

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.

It always amazes me that people say things like that. Why not turn it around and say that if I am not doing anything wrong the police have no basis to stop me. If I am not doing anything wrong they do not have probable cause to stop me. Why should I have to justify myself to someone when I am doing nothing wrong? No one can answer that question because they keep arguing that if I am not doing anything wrong I don't have to wrry.

That is not how it is supposed to work. The state is required to justify all its intrusions into my life even if I am doing something wrong, and then they are required to prove they were right to do so in court. Yet you shrug off this burden on my rights, and yours, because you think it makes you safer, despite the fact that there is no evidence that it does.

I do not care that you think it is fine for police to stop people for no reason because you feel unsafe without a night light and a security blanket. Not everyone needs the state to protect them from the big bad wolf, and I do not have to justify my resentment of police actions that violate my rights. On some level you know this, or you would not resort to an argument that shows you have nothing to offer to defend your position other than fascist talking points.

What are you talking about QW? When people say if you're not doing anything wrong you don't have anything to worry about they don't normally mean its ok if you get searched because you have nothing to hide, normally they are saying if you're not doing anything illegal you won't get stopped and or searched in the first place. Outside of sobriety checkpoints I cant think of any legal situation where it can happen. If the LEO in your home city are going house to house and searching without warrant, yes you have a problem. Otherwise you don't.

But go ahead QW list for me all the stories you've heard where someone was searched for no reason. I'm sure they will all be like George's 36 month prison sentence for talking on a phone wile driving..............meaning you'll tell half the story

 

[ConHog]

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?

No it is not, and you know it. They can ask to search, and have to let them go if they say no.

Except you are wrong.

1) Most of the time the vehicle which is sent after you will in fact be a K9 unit and that dog barking is probable cause.

2) LEO aren't stupid and they generally set up sobriety checkpoints in an area where a legal turn off just isn't possible; and of course if you're seen committing a traffic offense they can and will pull you over.