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Mr. Kotter
06-15-2006, 05:09 PM
Thank you, Mr. Roberts and Mr. Alito.....heh. :D

http://www.cnn.com/2006/LAW/06/15/scotus.search/index.html


Police don't have to knock, justices say
Alito's vote breaks 4-4 tie in police search case

By Bill Mears, CNN

WASHINGTON (CNN) -- A split Supreme Court ruled Thursday that drug evidence seized in a home search can be used against a suspect even though police failed to knock on the door and wait a "reasonable" amount of time before entering.

The 5-4 decision continues a string of rulings since the September 11, 2001 terrorist attacks that in general give law enforcement greater discretion to carry out search-and-seizure warrants.

President Bush's nominees to the high court, Chief Justice John Roberts and Justice Samuel Alito, notably sided with the government.Writing for the majority, Justice Antonin Scalia said disallowing evidence from every "knock-and-announce violation" by officers would lead to the "grave adverse consequence" of a flood of appeals by accused criminals seeking dismissal of their cases. (Opinion -- pdf (http://laws.findlaw.com/us/000/04-1360.html)http://i.cnn.net/cnn/.element/img/1.3/misc/icon.offsite.gif)He was joined by Roberts and his fellow conservatives Anthony Kennedy, Clarence Thomas and Alito.

Scalia added that police might put their lives in danger if they were uncertain when and if entry was legally permissible. "If the consequences of running afoul of the law were so massive, officers would be inclined to wait longer than the law requires -- producing inevitable violence against officers in some cases, and the destruction of evidence in many others."

The justices sparred in an appeal they are hearing for a second time, and reflected the deep divisions that remain on a court divided along ideological lines. There was little unanimity over how to ensure law enforcement officers do not routinely violate the constitutional protection against "unreasonable searches-and-seizures."

The appeal involves Booker Hudson, a Detroit, Michigan, man whose case has wound its way through various courts for nearly seven years.Seven city police officers executed a search warrant in August 1998 on Hudson's home, finding crack cocaine on him and around the residence, as well as a gun.Prosecutors said officers shouted "Police, search warrant," but readily admit that they did not knock on the door and that they waited only three to five seconds before entering and finding Hudson sitting on his couch. He was eventually convicted of drug possession."People have the right to answer the door in a dignified manner," Hudson's lawyer David Moran had told the high court.

The justices have ruled in the past that police should announce their presence, then normally wait 15 to 20 seconds before bursting into a home.Justice Stephen Breyer wrote a lengthy dissent, saying, "Our Fourth Amendment traditions place a high value upon protecting privacy in the home." A centerpiece of those protections, he said, includes the "exclusionary rule," under which evidence seized in illegal searches should be suppressed at trial."

It weakens, perhaps destroys, much of the practical value of the Constitution's knock-and-announce protection," concluded Breyer, who said he fears police will now feel free to routinely violate the knocking and waiting requirements, knowing they might not be punished for it.Justices John Paul Stevens, David Souter and Ruth Bader Ginsburg supported Breyer's position.The majority-conservative court has been generally supportive of police discretion since the 9/11 attacks, including disputes over home and car searches, suspect interrogations, and sobriety and border checkpoints.

Several of the more liberal justices have disagreed sharply in many of those cases.The high court has already ruled on two other search-and-seizure cases this term. In March, it said police were wrong to search a Georgia man's home over his objections, even though his estranged wife gave her consent. And last month, police in Utah investigating reports of a loud party were found to be justified entering a home under "emergency circumstances" to break up a fight, even though they did not have a search warrant to enter.

Alito turned out to be the deciding vote in the Hudson case. He was not yet on the bench when the case was first argued in January. His predecessor, Sandra Day O'Connor, heard the case and appeared to support the defendant.But she retired before a decision was issued and, under court rules, her vote did not count. That left a 4-4 tie, prompting the court to rehear the arguments.

BucEyedPea
06-15-2006, 05:38 PM
So the cops went "knock, knock" and the man inside didn't even ask "Who's there?" ROFL

Mr. Kotter
06-15-2006, 06:12 PM
So the cops went "knock, knock" and the man inside didn't even ask "Who's there?" ROFL

Maybe his mouth was full--eating his stash? ;)

Cochise
06-15-2006, 06:29 PM
What is the impact, really? If they have a warrant and are coming in already.

Just curious, for any of our legal eagles here.

Adept Havelock
06-15-2006, 06:34 PM
OK Kotter and BEP, here's an interesting hypothetical question for you.

Let's say I'm relaxing on the couch in the early hours of the morning watching TV. I hear something suspicious on the porch that sounds like some heavy footsteps. Not expecting visitors and concerned for my family, I get my gun. Next thing I know, the door flies open and two guys dressed in dark clothes storm into the room. I fire and drop one as they come through the remains of the door before they scream "police", and likely get shot in the process. I didn't realize that what I thought were thugs were a police tactical unit storming into the wrong address, thinking my house was the drug house down the street they meant to hit. It would certainly seem that according to the decision that you are trumpeting here, "I" am the one in the wrong? I now have to wait for an intruder to identify themselves before taking action to defend myself and my family? Sorry, I think that's a pack of BS, as is this decision.

At that point am I like Charity and Veronica Bowers? Or Willie Heard over in Kansas a few years ago? Just another sad innocent loss thanks to the "war on drugs"? :cuss:

BucEyedPea
06-15-2006, 06:44 PM
Why are you pickin' on me, AH...I have no opinion on this issue yet...hence my joking response! :harumph: ;)

Adept Havelock
06-15-2006, 06:47 PM
Why are you pickin' on me, AH...I have no opinion on this issue yet...hence my joking response! :harumph: ;)Mea' Culpa BucEyedPea. I (wrongly?) took your joke as agreeing with (what I believe to be) Kotter's short-sighted triumphalism about a decision that is a very sensitive subject for me.

Please forgive my assumption..:grovel: ;)

I do remain curious about your answer to my hypothetical question. :hmmm:

BucEyedPea
06-15-2006, 06:50 PM
Mea' Culpa BucEyedPea. I (wrongly?) took your joke as agreeing with (what I believe to be) Kotter's short-sighted triumphalism about a decision that is a very sensitive subject for me.

Please forgive my assumption..:grovel: ;)

Mea culpa? You gone religious now or somethin'?

BucEyedPea
06-15-2006, 06:55 PM
I do remain curious about your answer to my hypothetical question. :hmmm:

Seems like a very good point...guess you and Scalia are on the same page:

"Scalia added that police might put their lives in danger if they were uncertain when and if entry was legally permissible. "If the consequences of running afoul of the law were so massive, officers would be inclined to wait longer than the law requires -- producing inevitable violence against officers in some cases, and the destruction of evidence in many others."


Why oh why did this have to be determined at a federal level?
Still I'd have to listen in on this one and do some of my own reading to have a
final opinion. For instance I don't know of any "knock-and-announce" clause in the Constitution. You'd think police would want to protect themselves too.

Now should the evidence be thrown out because of this? I don't know about that.

htismaqe
06-15-2006, 06:56 PM
We all just need electronic locks with a "master code" that the government already knows.

Then they can come and go whenever they please...after all, that's what they want.

Adept Havelock
06-15-2006, 07:05 PM
Mea culpa? You gone religious now or somethin'?Yep. I have found true happiness as a member of the Church of Discordianism. (http://en.wikipedia.org/wiki/Discordianism) Hail Eris!Seems like a very good point...guess you and Scalia are on the same page:"Scalia added that police might put their lives in danger if they were uncertain when and if entry was legally permissible. "If the consequences of running afoul of the law were so massive, officers would be inclined to wait longer than the law requires -- producing inevitable violence against officers in some cases, and the destruction of evidence in many others."The difference between Scalia's position and mine is that he appears to believe I would be in the wrong were I to defend myself in a situation such as I proposed. I take serious issue with that.
Why oh why did this have to be determined at a federal level?
Still I'd have to listen in on this one and do some of my own reading to have a
final opinion. For instance I don't know of any "knock-and-announce" clause in the Constitution. You'd think police would want to protect themselves too.
Does the police's right to protect themselves supersede my right to defend myself, my family, and my property? In such a case, I think not.

As for a "knock and announce" clause, no. However I think my right to be "safe and secure in my home" covers me in such a situation. Sadly, in incidents like this where innocents have been shot assuming they have the right to defend themselves against what they believe to be a home invasion, AFAICT the courts have almost inevitably sided with the police.

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.We all just need electronic locks with a "master code" that the government already knows.

Then they can come and go whenever they please...after all, that's what they want.Isn't that the sad and sorry truth. And plenty of sheep would be willing to give it to them. "After all, if you haven't done anything wrong, what do you have to be worried about?" :cuss:

BucEyedPea
06-15-2006, 07:17 PM
Well reasoned post.

I just have a problem with the idea the police did have a warrant which seems to show they had probable cause in which case someone's privacy and security can be set aside.

He wasn't shot at, in this particular case, but someone could be, as well as the police. I do see those points.

To be honest I don't know how to reconcile the fact that the police did have a warrant and your idea of bodily security in such a situation. I don't even know if they can be. It does seem reasonable to me for the police to knock. Would the guy then have an opportunity to slip out as well? Would that guy have had more time to get his own gun ready to shoot the police?

I have a problem with the 14th amendment being cited though. If you've read my past posts on that one. There's no absolute privacy in the Constitution. It's implied mainly.

stevieray
06-15-2006, 07:19 PM
"After all, if you haven't done anything wrong, what do you have to be worried about?" :cuss:


drug testing for employment...

Adept Havelock
06-15-2006, 07:34 PM
Well reasoned post.

I just have a problem with the idea the police did have a warrant which seems to show they had probable cause in which case someone's privacy and security can be set aside.

He wasn't shot at, in this particular case, but someone could be, as well as the police. I do see those points.

To be honest I don't know how to reconcile the fact that the police did have a warrant and your idea of bodily security in such a situation. I don't even know if they can be. It does seem reasonable to me for the police to knock. Would the guy then have an opportunity to slip out as well?

I have a problem with the 14th amendment being cited though. If you've read my past posts on that one. There's no absolute privacy in the Constitution. It's implied mainly.
Thanks for the compliment. Though we disagree on some things, from you I consider that high praise indeed.

In my hypothetical situation (which has actually occurred several times over the past few years) the police had a warrant, but invaded the wrong premises. That is what I am taking issue with. Also, I'm talking about the 4'th amendment, not the 14'th, though I do believe there is a right to privacy. On that point, I can always agree to disagree.

drug testing for employment...
Another of my pet peeves. For those involved in Law Enforcement, Public Safety, Transportation, etc. while I dislike it, I can see the need. For Joe Schmoe down at Wal-Mart or some such, it's just an invasion of privacy IMO.

BucEyedPea
06-15-2006, 07:41 PM
Thanks for the compliment. Though we disagree on some things, from you I consider that high praise indeed.

In my hypothetical situation (which has actually occurred several times over the past few years) the police had a warrant, but invaded the wrong premises. That is what I am taking issue with.

You're welcome. I did not know about the wrong premises cases and if anyone got hurt or not. Did they?


If not then what harm came to these people?

Adept Havelock
06-15-2006, 08:22 PM
You're welcome. I did not know about the wrong premises cases and if anyone got hurt or not. Did they?


If not then what harm came to these people?

Officer Ron Jones 29 years old Prentiss, Mississippi
Officer Jones was in the process of serving a drug warrant, based on an informant tip. While trying to enter the rear of a duplex, he broke into the wrong apartment and was shot by the resident, Corey Maye, who had no prior record and was protecting his daughter. No drugs were found. Maye was charged with capital murder, and sentenced to death.


Willie Heard 46 years old Osawatomie, Kansas
SWAT conducted a no-knock drug raid, complete with flash-bang grenades. Heard was shot to death in front of his wife and 16-year-old daughter who had cried for help. Fearing home invasion, he was holding an empty rifle. The raid was at the wrong house.



Deputy Keith Ruiz 36 years old Travis County, Texas
Ruiz was a husband and father who was a veteran of numerous SWAT raids. In the process of serving a drug warrant, he was trying to break down the door to a mobile home occupied by painter Edwin Delamora, his wife, and two young children. Confused by the raid at night, Delamora yelled to his wife that they were being robbed and shot through the door, killing Ruiz.




Manuel Ramirez Stockton, California
At 2 am, police smashed down the door and rushed into the home of Manuel Ramirez, a retired golf course groundskeeper. Ramirez awoke, grabbed a pistol and shot and killed officer Arthur Parga before other officers killed him. Police were raiding the house based on a tip that drugs were on the premises, but they found no drugs.

John Adams 64 years old Lebanon, Tennessee
Shot to death during a SWAT drug raid while watching TV. The house didn't match the description on the warrant.

Alberta Spruill 57 years old Harlem, New York
Police, acting on a tip, forced their way into Spruill's home, setting off flash grenades. She suffered a heart attack and died. It was the wrong address.



Tony Marinez 19 years old De Valle, Texas
Officers conducted a drug raid on a mobile home in De Valle. Martinez, who was not the target of the raid, was asleep on the couch when the raid commenced. Hearing the front door smashed open, he sat up, and was shot to death in the chest.

Ismael Mena 45 years old Denver, Colorado
Mena was killed when police barged into his house looking for drugs. They had the wrong address.


Mario Paz 65 years old Compton, California
Mario was shot twice in the back in his bedroom during a SWAT raid looking for marijuana. No drugs were found.



John Hirko 21 years old Pennsylvania
An unarmed man with no prior offenses was shot to death in his house by a squad of masked police. In a no-knock raid, they tossed a smoke grenade in through a window, setting the house on fire. Hirko, suspected of dealing small amounts of marijuana and cocaine, was found face down on his stairway, shot in the back while fleeing the burning building. When the fire was finally put out, officers found some marijuana seeds in an unsinged plastic bag.

Anthony Andrew Diotaiuto 23 years old Sunrise, Florida

Anthony worked two jobs to help pay for the house he lived in with his mother. He had permit for a concealed weapon because of the areas he traveled through for his night job. Sunrise police claimed that he had sold some marijuana, and because they knew he had a legal gun, decided to use SWAT. Neighbors claim that the police did not identify themselves. Police first claimed that Anthony pointed his gun at them, and later changed their story. Regardless, Anthony was dead with 10 bullets in him, and the police found 2 ounces of marijuana

Starting to see why I have a problem with this?

That, and I think it will only encourage more behavior like this...


Donald P. Scott 61 years old Malibu, California

Government agencies were interested in the property of this reclusive millionaire. A warrant was issued based on concocted "evidence" of supposed marijuana plantings, and a major raid was conducted with a 32-man assault team. Scott was shot to death in front of his wife. No drugs were found.

A later official report found: "It is the District Attorney's opinion that the Los Angeles County Sheriffs Department was motivated, at least in part, by a desire to seize and forfeit the ranch for the government. Based in part upon the possibility of forfeiture, Spencer obtained a search warrant that was not supported by probable cause. This search warrant became Donald Scott's death warrant."


As for the reference in my original post:



Veronica Bowers 35 years old Charity Bowers 7 months old
As part of a long-standing arrangement to stop drug shipments, U.S. government tracking provided the information for the Peruvian Air Force to mistakenly shoot down a Cessna plane carrying missionaries. Killed in the incident were Roni Bowers, a missionary with the Association of Baptists for World Evangelism, and her daughter, Charity.

But of course, there's a war on drugs to fight. And as the journalistic apologist John Dewey said of Lenin and Stalin, and the "law-and-order" crowd would say of these victims: "you can't make an omelette without breaking a few eggs".

John_Locke
06-15-2006, 08:58 PM
this is a bad thing to be happening.


we don't need to give up more civil rights.

John_Locke
06-15-2006, 08:59 PM
Thank you, Mr. Roberts and Mr. Alito.....heh. :D

.


are you really this in love with the current administration?


do you bend over for everyone?

stevieray
06-15-2006, 09:25 PM
this is a bad thing to be happening.


we don't need to give up more civil rights.

I agree, unfortunately due to the breakdown of the family, among other things, we keep looking for the goverment to decide where the line is drawn.

PC.

Brock
06-15-2006, 09:37 PM
The more time I spend in DC, the more convinced I am that Kotter is a fuggin dumbass.

Logical
06-15-2006, 09:42 PM
Weird I did not even know that the police were ever required to knock if they had a search/seizure warrant. I think this is a good common sense ruling.

Logical
06-15-2006, 09:45 PM
this is a bad thing to be happening.


we don't need to give up more civil rights.

OK clue me in, sufficient evidence has been found to obtain the court order for a search/seizure warrant, what is the civil right being broken at that point because they don't knock? Even if they did knock and no one answered they can then break down the door. Makes no sense they need to knock.

Logical
06-15-2006, 09:49 PM
OK Kotter and BEP, here's an interesting hypothetical question for you.

Let's say I'm relaxing on the couch in the early hours of the morning watching TV. I hear something suspicious on the porch that sounds like some heavy footsteps. Not expecting visitors and concerned for my family, I get my gun. Next thing I know, the door flies open and two guys dressed in dark clothes storm into the room. I fire and drop one as they come through the remains of the door before they scream "police", and likely get shot in the process. I didn't realize that what I thought were thugs were a police tactical unit storming into the wrong address, thinking my house was the drug house down the street they meant to hit. It would certainly seem that according to the decision that you are trumpeting here, "I" am the one in the wrong? I now have to wait for an intruder to identify themselves before taking action to defend myself and my family? Sorry, I think that's a pack of BS, as is this decision.

At that point am I like Charity and Veronica Bowers? Or Willie Heard over in Kansas a few years ago? Just another sad innocent loss thanks to the "war on drugs"? :cuss:

In your hypothetical I believe you will be found innocent (if you survive). Of course the fact is you are presenting a scenario where the police have already made a major error, why would you believe they would not compound that error by not identifying themselves if this ruling had not been made?

Adept Havelock
06-15-2006, 09:57 PM
In your hypothetical I believe you will be found innocent (if you survive). Of course the fact is you are presenting a scenario where the police have already made a major error, why would you believe they would not compound that error by not identifying themselves if this ruling had not been made?You might look at some of the cases I listed above, especially the first one, before assuming I would be found innocent. Corey Maye probably felt the same way.

This is just another case of increasing the states power at the expense of the individuals.

As for your idea it makes no sense that they need to knock, perhaps in a few cases it might help save police lives. If they do knock, it probably would help save a few lives in cases like the ones I listed above.

Mr. Kotter
06-15-2006, 09:59 PM
OK Kotter and BEP, here's an interesting hypothetical question for you.

Let's say I'm relaxing on the couch in the early hours of the morning watching TV. I hear something suspicious on the porch that sounds like some heavy footsteps. Not expecting visitors and concerned for my family, I get my gun. Next thing I know, the door flies open and two guys dressed in dark clothes storm into the room. I fire and drop one as they come through the remains of the door before they scream "police", and likely get shot in the process. I didn't realize that what I thought were thugs were a police tactical unit storming into the wrong address, thinking my house was the drug house down the street they meant to hit. It would certainly seem that according to the decision that you are trumpeting here, "I" am the one in the wrong? I now have to wait for an intruder to identify themselves before taking action to defend myself and my family? Sorry, I think that's a pack of BS, as is this decision.

At that point am I like Charity and Veronica Bowers? Or Willie Heard over in Kansas a few years ago? Just another sad innocent loss thanks to the "war on drugs"? :cuss:

Well, a jury of your peers gets to decide whether your actions were reasonable. If your lawyer is convincing, I'd consider giving you the benefit of the doubt. As a hypothetical, there are too many unknowns to be sure though. :shrug:

Adept Havelock
06-15-2006, 10:02 PM
Well, a jury of your peers gets to decide whether your actions were reasonable. If your lawyer is convincing, I'd consider giving you the benefit of the doubt. As a hypothetical, there are too many unknowns to be sure though. :shrug:So, if I'm poor and have to rely on a public defender who doesn't really give a crap about trying to be more convincing than the police, I'm worm food. Just for believing I was attempting to defend my family? BS.

As I just told Vlad, the "hypothetical" was a bit of a setup. Look at some of the cases I listed above.

Most of those tragedies could have been averted had the police been a bit more intelligent in their actions, including announcing their presence. Yes, they might be at an increased risk. Risk goes with the job, and should not be minimized at the expense of the innocent. JMO.

Mr. Kotter
06-15-2006, 10:05 PM
are you really this in love with the current administration?


do you bend over for everyone?

No. And, definitely, no....dick weed.

I'm just a fan of giving cops whatever they need to get the bad guy, and reversing the excesses of the Warren Court.

Mr. Kotter
06-15-2006, 10:09 PM
So, if I'm poor and have to rely on a public defender who doesn't really give a crap about trying to be more convincing than the police, I'm worm food. Just for believing I was attempting to defend my family? BS.

As I just told Vlad, the "hypothetical" was a bit of a setup. Look at some of the cases I listed above.

Most of those tragedies could have been averted had the police been a bit more intelligent in their actions, including announcing their presence. Yes, they might be at an increased risk. Risk goes with the job, and should not be minimized at the expense of the innocent. JMO.

If you are really that jumpy, in your own home, you need to move to a better neighborhood in my opinion. In this case, they announced they were police....if a defendent doesn't use the good judgement to make sure they weren't before shooting anybody, they have put themselves in position of defending their actions as self-defense.....and gotta convince a jury that claim is credible. Fair enough, IMO.

Mr. Kotter
06-15-2006, 10:12 PM
The more time I spend in DC, the more convinced I am that Kotter is a fuggin dumbass.
It took me less than a few weeks to realize you were a steaming POS.

FWIW, five justices agreed with me.....only four seemed convinced of your position. :)

WilliamTheIrish
06-15-2006, 10:25 PM
OK Kotter and BEP, here's an interesting hypothetical question for you.

Let's say I'm relaxing on the couch in the early hours of the morning watching TV. I hear something suspicious on the porch that sounds like some heavy footsteps. Not expecting visitors and concerned for my family, I get my gun. Next thing I know, the door flies open and two guys dressed in dark clothes storm into the room. I fire and drop one as they come through the remains of the door before they scream "police", and likely get shot in the process. I didn't realize that what I thought were thugs were a police tactical unit storming into the wrong address, thinking my house was the drug house down the street they meant to hit. It would certainly seem that according to the decision that you are trumpeting here, "I" am the one in the wrong? I now have to wait for an intruder to identify themselves before taking action to defend myself and my family? Sorry, I think that's a pack of BS, as is this decision.

At that point am I like Charity and Veronica Bowers? Or Willie Heard over in Kansas a few years ago? Just another sad innocent loss thanks to the "war on drugs"? :cuss:

This exact story happened about 8 years ago in Topeks, Kansas. The local cops could have busted David Strobel at his job. Instead they decided to bust down the door to his apartment. Strobel (who I went to school with) was practically blind without his glasses.
He heard his door being busted down and fired at the door. His first shot went through a tiny crease in the door, into the officers shoulder, just under his vest. The slug followed his clavicle and wound down to his aorta. Killed him dead.

Mr. Kotter
06-15-2006, 10:33 PM
This exact story happened about 8 years ago in Topeks, Kansas. The local cops could have busted David Strobel at his job. Instead they decided to bust down the door to his apartment. Strobel (who I went to school with) was practically blind without his glasses.
He heard his door being busted down and fired at the door. His first shot went through a tiny crease in the door, into the officers shoulder, just under his vest. The slug followed his clavicle and wound down to his aorta. Killed him dead.

Cases like that are tragic. It's not an easy call, that's for sure. But anecdotal cases do not, IMO, diminish the fact that a greater good will probably come of this: more real criminals and thugs off the streets, and likely sooner than they would have been otherwise.

Does that increase the risk for officers? Perhaps. Hopefully, they will be careful and judicious in selecting when and if to take advantage of this new latitude they have.

Taco John
06-16-2006, 03:25 AM
I'm thinking about printing the constitution as doormats and selling them to Bush supporters.

the Talking Can
06-16-2006, 06:21 AM
I'm thinking about printing the constitution as doormats and selling them to Bush supporters.

print it as toilet paper....that's all it is used for anymore...

Radar Chief
06-16-2006, 07:04 AM
If you are really that jumpy, in your own home, you need to move to a better neighborhood in my opinion.

Then why don’t you provide the $$$ for’em to move?
Come’on Kotter, that’s a cop-out and you know it.

htismaqe
06-16-2006, 07:52 AM
I'm thinking about printing the constitution as doormats and selling them to Bush supporters.

Give them to anyone who's a registered Republican OR Democrat. Both sides have about the same contempt for the Constitution.

Mr. Kotter
06-16-2006, 08:54 AM
Then why don’t you provide the $$$ for’em to move?
Come’on Kotter, that’s a cop-out and you know it.

I know, I know....where is my compassion?

Mr. Kotter
06-16-2006, 08:57 AM
Give them to anyone who's a registered Republican OR Democrat. Both sides have about the same contempt for the Constitution.

Original intent is a noble concept; but the world we live in today is much different than the one of our founding fathers. They were wise, indeed, to have built a "Living Document"....that responds to changing times.

oldandslow
06-16-2006, 09:15 AM
Original intent is a noble concept; but the world we live in today is much different than the one of our founding fathers. They were wise, indeed, to have built a "Living Document"....that responds to changing times.


I thought you were against activist judges????

The war on "terra" and the war on drugs have effectively emmasculated the 4rth amendment.

Work is yet to be completed on the other nine.

jiveturkey
06-16-2006, 09:18 AM
Original intent is a noble concept; but the world we live in today is much different than the one of our founding fathers. They were wise, indeed, to have built a "Living Document"....that responds to changing times.Is the world today really that much different or are you just a bigger pussy than our founding fathers?

banyon
06-16-2006, 09:45 AM
Since the general civilization of mankind, I believe there are more instances of the abridgment of the freedom of the people by gradual and silent encroachments of those in power than by violent and sudden usurpation

:thumb:

Mr. Kotter
06-16-2006, 09:50 AM
I thought you were against activist judges????

The war on "terra" and the war on drugs have effectively emmasculated the 4rth amendment.

Work is yet to be completed on the other nine.
I am.

However, if it takes an "activist" decision to reverse an excess of the Warren Court....I'll make an exception. :shrug:

Mr. Kotter
06-16-2006, 10:40 AM
Is Logical the only one here who actually read the article before spouting off? :shrug:

The Fourth amendment requires cops obtain a Search Warrant, or have ascertained probable cause before conducting a seach. In this case, they had BOTH....

I really wonder some of you read the article very closely--rather than just a knee-jerk reaction to what you see as an encroachment upon individual rights:
Prosecutors said officers shouted "Police, search warrant," but readily admit that they did not knock on the door and that they waited only three to five seconds before entering and finding Hudson sitting on his couch. He was eventually convicted of drug possession."People have the right to answer the door in a dignified manner," Hudson's lawyer David Moran had told the high court. So, to recap:
1. Police had a warrant.
2. Police identified themselves, although they did not knock.
3. Police waited 3-5 seconds before entering.

So, it would seem you folks have your panties all wadded up over much ado about nothing....

Are you guys really agreeing with the defense attorney here, that there is some Constitutional right....to "answer the door in a dignified manner?" :spock:

That's just silly....IMHO.

banyon
06-16-2006, 10:53 AM
Is Logical the only one here who actually read the article before spouting off? :shrug:

The Fourth amendment requires cops obtain a Search Warrant, or have ascertained probable cause before conducting a seach. In this case, they had BOTH....

I really wonder some of you read the article very closely--rather than just a knee-jerk reaction to what you see as an encroachment upon individual rights:
So, to recap:
1. Police had a warrant.
2. Police identified themselves, although they did not knock.
3. Police waited 3-5 seconds before entering.

So, it would seem you folks have your panties all wadded up over much ado about nothing....

Are you guys really agreeing with the defense attorney here, that there is some Constitutional right....to "answer the door in a dignified manner?" :spock:

That's just silly....IMHO.

So, as long as the police have a warrant, they can execute it however they see fit? You see, the 4th amendment is more than just the warrant requirement, it also provides "the right of people to be secure in their persons, houses, papers, and effects." Allowing police to enter any domicile they want in whatever fashion they want, flash grenades and all, does not tend to make me feel "more secure" in my house. Adept listed plenty of instances where carelessness in executing warrants has led to unnecessary deaths. Eroding this protection makes the police just that much more confident to proceed how they wish and will no result in more unnecessary intrusions.

Mr. Kotter
06-16-2006, 11:10 AM
So, as long as the police have a warrant, they can execute it however they see fit? You see, the 4th amendment is more than just the warrant requirement, it also provides "the right of people to be secure in their persons, houses, papers, and effects." Allowing police to enter any domicile they want in whatever fashion they want, flash grenades and all, does not tend to make me feel "more secure" in my house. Adept listed plenty of instances where carelessness in executing warrants has led to unnecessary deaths. Eroding this protection makes the police just that much more confident to proceed how they wish and will no result in more unnecessary intrusions. 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.


So, you're going to give the broadest possible meaning to descriptive wording, which clearly and primarily is in the context of preventing "unreasonable searches?"

Well, we'll have to agree to disagree then. In my world, most experienced and responsible cops will use discretion....but to hamstringing them, by requiring that they somehow must be "courteous" and "polite" about it--in executing a warrant they already have? No thanks.

go bowe
06-16-2006, 11:21 AM
What is the impact, really? If they have a warrant and are coming in already.

Just curious, for any of our legal eagles here.it's impact legally is the exclusionary rule is being whittled away slowly but surely...

that's the rule that says you can't use evidence that was seized unconstitutionally...

every time they come up with another exception, the rule is further weakened...

that matters because according to the dissent in this case, the exclusionary rule is the centerpiece of the protections of privacy under constitutional law...

it is one of the cornerstones of our current criminal justice system and the source of much public outrage over the years as guilty people are set free much too often on constitutional "technicalities"...

do away with the exclusionary rule and our system of ensuring consitutional rights will collapse, and theoretically, our legal system would also collapse under a tidal wave of changes to our most basic legal principles...

of course, i've often wondered if that might not be a good thing...

go bowe
06-16-2006, 11:23 AM
It took me less than a few weeks to realize you were a steaming POS.

FWIW, five justices agreed with me.....only four seemed convinced of your position. :)my, my, my...

another fan? :p :p :p

oldandslow
06-16-2006, 11:32 AM
Kotter:

There is a larger question here. You state well the old axiom that until a statute is changed we should do whatever is necessary to uphold that statute.

Jim Crow was statute during my lifetime. Had Bull Conner been given enough dogs it would probably still be statute. There comes a time to delegitimize

Jim Crow is, of course, antithetical to a host of amendments, and succumbed because courts finally decided that Plessy vs Ferguson is not really the spirit of the 13, 14, & 15th amendments. Ultimately, the constitution takes precedent over statute.

I believe this decision (as well as decisions like the eminent domain case and current NSA cases) lie in the realm of Plessy.

go bowe
06-16-2006, 11:39 AM
Kotter:

There is a larger question here. You state well the old axiom that until a statute is changed we should do whatever is necessary to uphold that statute.

Jim Crow was statute during my lifetime. Had Bull Conner been given enough dogs it would probably still be statute. There comes a time to delegitimize

Jim Crow is, of course, antithetical to a host of amendments, and succumbed because courts finally decided that Plessy vs Ferguson is not really the spirit of the 13, 14, & 15th amendments. Ultimately, the constitution takes precedent over statute.

I believe this decision (as well as decisions like the eminent domain case and current NSA cases) lie in the realm of Plessy.are you suggesting those cases are like plessy in that they will be overturned one day?

or that they are like plessy, antithetical to a host of amendments?

Taco John
06-16-2006, 11:39 AM
Give them to anyone who's a registered Republican OR Democrat. Both sides have about the same contempt for the Constitution.


I don't know... Democrats don't require their supporters to sign faith pledges in order to listen to them lie to you. That's gotta count for something...

patteeu
06-16-2006, 11:56 AM
OK Kotter and BEP, here's an interesting hypothetical question for you.

Let's say I'm relaxing on the couch in the early hours of the morning watching TV. I hear something suspicious on the porch that sounds like some heavy footsteps. Not expecting visitors and concerned for my family, I get my gun. Next thing I know, the door flies open and two guys dressed in dark clothes storm into the room. I fire and drop one as they come through the remains of the door before they scream "police", and likely get shot in the process. I didn't realize that what I thought were thugs were a police tactical unit storming into the wrong address, thinking my house was the drug house down the street they meant to hit. It would certainly seem that according to the decision that you are trumpeting here, "I" am the one in the wrong? I now have to wait for an intruder to identify themselves before taking action to defend myself and my family? Sorry, I think that's a pack of BS, as is this decision.

At that point am I like Charity and Veronica Bowers? Or Willie Heard over in Kansas a few years ago? Just another sad innocent loss thanks to the "war on drugs"? :cuss:

Here's an alternative hypothetical. What if criminals, fearing that the residents in a house they are about to rob might be armed, shout "POLICE" before breaking the door down and storming into the room dressed in dark clothing. Should the residents use their weapons in self defense or should they put them on the ground and raise their hands in the air to insure that the "police" don't accidentally hurt them?

My take on this whole issue is that a trial judge should have the discretion to exclude evidence if he determines that there was police misconduct warranting such a sanction but that he shouldn't be required to exclude it as if the searchees have some right to be warned before entry.

htismaqe
06-16-2006, 12:08 PM
I don't know... Democrats don't require their supporters to sign faith pledges in order to listen to them lie to you. That's gotta count for something...

Nah, they just sell your jobs to foreign countries while getting your union leadership to coerce you into voting for them again...

go bowe
06-16-2006, 12:10 PM
they still have unions?

i thought the bushies eliminated all that liberal crap...

banyon
06-16-2006, 12:13 PM
Here's an alternative hypothetical. What if criminals, fearing that the residents in a house they are about to rob might be armed, shout "POLICE" before breaking the door down and storming into the room dressed in dark clothing. Should the residents use their weapons in self defense or should they put them on the ground and raise their hands in the air to insure that the "police" don't accidentally hurt them?

Exactly, but the opposite conclusion is warranted. People should be able to defend their homes against intruders without having to verify first what the identity of the intruder is. Thus, Police need some check (viz. the exclusionary rule) to ensure that this right is not unduly abrogated.

Saying it should be a matter of judicial discretion is pretty much like saying that there should be no exclusionary rule, IMO. The exclusionary rule is there to put a check on police actions, without it or a similar check, a police state is pretty much the gradual result.

oldandslow
06-16-2006, 12:13 PM
are you suggesting those cases are like plessy in that they will be overturned one day?

or that they are like plessy, antithetical to a host of amendments?

Both...

I hope that they will be overturned, and...

they are antithetical to a host of amendments.

oldandslow
06-16-2006, 12:15 PM
Exactly, but the opposite conclusion is warranted. People should be able to defend their homes against intruders without having to verify first what the identity of the intruder is. Thus, Police need some check (viz. the exclusionary rule) to ensure that this right is not unduly abrogated.

Saying it should be a matter of judicial discretion is pretty much like saying that there should be no exclusionary rule, IMO. The exclusionary rule is there to put a check on police actions, without it or a similar check, a police state is pretty much the gradual result.


Exactly....

htismaqe
06-16-2006, 12:16 PM
they still have unions?

i thought the bushies eliminated all that liberal crap...

Well, they don't anymore. A good deal of my family was UAW at Maytag in Newton. The minute NAFTA passed, they started building factories in Mexico and moving jobs there. Whirlpool just bought them and eliminated the Newton facility...

patteeu
06-16-2006, 12:17 PM
The difference between Scalia's position and mine is that he appears to believe I would be in the wrong were I to defend myself in a situation such as I proposed. I take serious issue with that.Does the police's right to protect themselves supersede my right to defend myself, my family, and my property? In such a case, I think not.

I forgot to address this aspect of your hypothetical. I don't know about Scalia, but my opinion would be that if the resident believed he was defending himself from illegitimate intruders, then he should be legally protected under self defense principles. Of course, one person firing on a well armed and equipped special tactics team might not make it through the firefight to assert his right to self-defense in a courtroom.

patteeu
06-16-2006, 12:36 PM
I'm thinking about printing the constitution as doormats and selling them to Bush supporters.

Please print me a copy because the one I have doesn't seem to include the "knock before entering" clause.

patteeu
06-16-2006, 12:37 PM
Original intent is a noble concept; but the world we live in today is much different than the one of our founding fathers. They were wise, indeed, to have built a "Living Document"....that responds to changing times.

Please turn in your anti-activism card. It's been revoked.

oldandslow
06-16-2006, 12:43 PM
Please print me a copy because the one I have doesn't seem to include the "knock before entering" clause.

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.

That first phrase comes awfully damn close, imo.

patteeu
06-16-2006, 12:54 PM
Exactly, but the opposite conclusion is warranted. People should be able to defend their homes against intruders without having to verify first what the identity of the intruder is. Thus, Police need some check (viz. the exclusionary rule) to ensure that this right is not unduly abrogated.

Saying it should be a matter of judicial discretion is pretty much like saying that there should be no exclusionary rule, IMO. The exclusionary rule is there to put a check on police actions, without it or a similar check, a police state is pretty much the gradual result.

Why is judicial discretion the holy grail of adequacy when it comes to NSA wiretaps but it's inadequate to protect against police abuses when it comes to entering a home for which they already have a search warrant?

I'm not sure how you draw your conclusion from my counter-hypothetical. It seems to me that the conclusion to be drawn from it is that knock and announce doesn't do anything more than give the occupants a little more time to prepare for the intrusion. It tells them nothing about who the intruders really are. The extra time could be a good or a bad thing.

patteeu
06-16-2006, 12:56 PM
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.

That first phrase comes awfully damn close, imo.

Why shouldn't the police have to wait outside until the occupants decide to give themselves up and leave their secure houses? What part of this clause tells you that "knock and announce" is where the line is drawn?

banyon
06-16-2006, 01:08 PM
Why is judicial discretion the holy grail of adequacy when it comes to NSA wiretaps but it's inadequate to protect against police abuses when it comes to entering a home for which they already have a search warrant?

There is a warrant issued in both cases. But after the issuance, the NSA doesn't make quite so dramatic an entry into your home as the police do kicking in the door with flash grenades. Thus, we don't have Constitutional protections in place to curb the NSA's post warrant activities, because, so far, we have viewed those intrusions as not unreasonably invasive.

I'm not sure how you draw your conclusion from my counter-hypothetical. It seems to me that the conclusion to be drawn from it is that knock and announce doesn't do anything more than give the occupants a little more time to prepare for the intrusion. It tells them nothing about who the intruders really are. The extra time could be a good or a bad thing.

Surely most burglars do not knock and announce that they are the Police to trick the occupants. Therefore, in the vast majority of cases, you would be protecting innocent parties. If you want to say, "Yeah, but most of the time the police have it right", then we really don't need any civil liberties or protections at all. We can just count on the police to get it correct all the time.

patteeu
06-16-2006, 01:37 PM
Surely most burglars do not knock and announce that they are the Police to trick the occupants. Therefore, in the vast majority of cases, you would be protecting innocent parties. If you want to say, "Yeah, but most of the time the police have it right", then we really don't need any civil liberties or protections at all. We can just count on the police to get it correct all the time.

You leave out the legitimate interest we have in protecting the police from a better prepared beligerent.

I would say that in the vast majority of the cases, you would be protecting parties that are the legitimate subjects of a search and/or arrest warrant, not necessarily innocent parties.

When the police get it wrong, in most cases, it can be rectified after the fact by a judge using appropriate discretion. The warrant is a civil liberties protection, btw.

go bowe
06-16-2006, 01:41 PM
Why is judicial discretion the holy grail of adequacy when it comes to NSA wiretaps but it's inadequate to protect against police abuses when it comes to entering a home for which they already have a search warrant?
* * *you don't play fair...

these kinds of perceptive observations make it harder to bluff and bluster around here...

i mean, how can anybody hope to answer that question?

oldandslow
06-16-2006, 01:42 PM
Ironically, eleven years ago, in a unanimous decision, the SCOTUS upheld knock before entering.

5-4 decisions are often bad decisions.

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=000&invol=U10280

BucEyedPea
06-16-2006, 02:13 PM
Wow! This thread has really taken off...a good read!

I don't like the cases where someone innocent loses their life out of self defense even if the cops make an honest error. I don't like that. I don't know what the solution is exactly. But do these things have to always be decided by the courts? Can't a local legislature pass a law for some reasonable precautions to be implemented? Can't a citizen's family sue for loss of life due to negligence or something along these lines as a check?

Specifically regarding the first case of this thread though, I just don't see what the cops did there as bad enough to actually exclude the evidence. I mean why take it that far for a sanction. I kinda liked patteeu's idea on discretion by judge on that to determine misconduct. Why not have some sanction, punishment or suit on any cops who get evidence by unconstitutional means, but still allow that evidence? Otherwise don't we give criminals more rights than honest citizens? Is that what our constitution is for protecting criminals?

In a twisted sense, one could look at the first case here, as an example of a criminal causing more honest citizens to lose their rights too.

Still in those cases where people lost their lives...I don't care for how those cases were handled at all. To me our lives, being protected is the first duty of the state. Cops do overreact and use more force than needed at times.

patteeu
06-16-2006, 02:33 PM
But do these things have to always be decided by the courts? Can't a local legislature pass a law for some reasonable precautions to be implemented?

Brilliant observation!

I kinda liked patteeu's idea ....

EVEN MORE BRILLIANT!!! ROFL

BucEyedPea
06-16-2006, 02:44 PM
*bows*

Ah hah! Guess where I got that idea, or heard it again newly?






Justice John Roberts and Scalia.

banyon
06-16-2006, 03:05 PM
You leave out the legitimate interest we have in protecting the police from a better prepared beligerent.

I would say that in the vast majority of the cases, you would be protecting parties that are the legitimate subjects of a search and/or arrest warrant, not necessarily innocent parties.

I shouldn't have worded my response the way I did. What I meant was "In the vast majority of cases in which homes are burgled" in case that was confusing. But wrt the police conduct, protecting the majority at the expense of the few is directly antithetical to everything the Bill of Rights stands for.

When the police get it wrong, in most cases, it can be rectified after the fact by a judge using appropriate discretion. The warrant is a civil liberties protection, btw.

Indeed, you seem to be arguing that the exclusionary rule is simply an antiquated custom from yesteryear. Judges are usually going to defer to the judgment of the officer in most cases, unless there is really compelling evidence not to do so. You are willing to put a very heavy burden on those with little in the way of legal resources. The 4th amendment is designed to protect people from government intrusion, both from judges and police. Simply because we involve a judge does not guarantee that the 4th Amendment should have been satisfied.

banyon
06-16-2006, 03:07 PM
*bows*

Ah hah! Guess where I got that idea, or heard it again newly?

The Klan, arguing for the renewal of Segregation?

BucEyedPea
06-16-2006, 03:12 PM
The Klan, arguing for the renewal of Segregation?

Well, then if they're Klan then wouldn't that make you a pinko? :p

WilliamTheIrish
06-16-2006, 03:22 PM
Cases like that are tragic. It's not an easy call, that's for sure. But anecdotal cases do not, IMO, diminish the fact that a greater good will probably come of this: more real criminals and thugs off the streets, and likely sooner than they would have been otherwise.

Does that increase the risk for officers? Perhaps. Hopefully, they will be careful and judicious in selecting when and if to take advantage of this new latitude they have.

Kotter,

Strobel was not a dealer, nor a thug. He was just a guy who worked in paper factory in downtown Topeka, Ks. He made two purchases of weed from a local undercover cop.

The cops KNEW where he lived. KNEW where he worked. KNEW what his hours were. All the dumbasses had to do was walk up and cuff him after work. Or at work.

Instead, they prepare the elaborate idiot squad and break into a 34 year old loser's rented apartment. He wakes up, fires a random shot and kills a local LEO.

He was prosecuted as for murder. He was convicted (IIRC) for manslaughter. Got 6 years (or so).

The cops are turning into the "thugs and criminals" you speak of.

Cops do not take the judicious route when there's a chance they can confiscate property.

RedNFeisty
06-16-2006, 03:26 PM
ROFL

Last week I took a day off work, Clint came home at lunch time, we were sitting on the couch watching Family Feud and smoking a nice jay. A knock on the door startled us; I answered the door to find two police officers standing there. One officer asked if there was a gentleman there, I told him my husband and he asked if they could speak with him. I said okay, give me just a minute to get him and I closed the door. Clint goes out and talks to the guys, come to find out there was a report that a man went out our side door that opens into the back yard and started shooting at our dog. Clint laughed and told them no, he had just gotten home and showed them our dog, the officers said okay and as they were getting ready to leave told Clint that he should get rid of the pot and they left. I thought I was going to have a heart attack that is the closest I have been to being caught that I know of.

So, I am very happy that this came out today and not last week!!

banyon
06-16-2006, 03:28 PM
Well, then if they're Klan then wouldn't that make you a pinko? :p

Seriously, that logic says that local entities should be in charge of determining our civil rights would allow local jurisdictions to set whatever standards they wanted on any issue.

Radar Chief
06-16-2006, 03:30 PM
ROFL

Last week I took a day off work, Clint came home at lunch time, we were sitting on the couch watching Family Feud and smoking a nice jay. A knock on the door startled us; I answered the door to find two police officers standing there. One officer asked if there was a gentleman there, I told him my husband and he asked if they could speak with him. I said okay, give me just a minute to get him and I closed the door. Clint goes out and talks to the guys, come to find out there was a report that a man went out our side door that opens into the back yard and started shooting at our dog. Clint laughed and told them no, he had just gotten home and showed them our dog, the officers said okay and as they were getting ready to leave told Clint that he should get rid of the pot and they left. I thought I was going to have a heart attack that is the closest I have been to being caught that I know of.

So, I am very happy that this came out today and not last week!!

Ok, I’m call’n :BS:.
If Clint’s a stoner, why’s he always so pissed? :shrug: :bong:

Radar Chief
06-16-2006, 03:31 PM
Ok, I’m call’n :BS:.
If Clint’s a stoner, why’s he always so pissed? :shrug: :bong:

Or is it that he only posts here when he’s out of chronic? :hmmm:

BucEyedPea
06-16-2006, 03:32 PM
When I first moved here,I got a knock and there were two huge cops. I was alone. They told me I had my sprinklers on the wrong day. Apparently, I could only water on odd numbered days but had only been here a few weeks. ( a cop lived across the street from me too). So I just said, "Fine, I didn't know, that I was new here." Then I asked who reported me. They wouldn't tell me. They said it was confidential. I responded. "Oh, no the Constitution says I have to be faced with my accuser....no anonymous reports." Well they backed off and told me I could come down the station to find out. I didn't really want to know. I thought it would wreck relationships. I think I know who it was. Talk about overkill....all they had to do was come over and tell me that I couldn't water on certain days. I had no idea there was a drought in the area.

Water Police! :cuss:

jettio
06-16-2006, 03:38 PM
Is Logical the only one here who actually read the article before spouting off? :shrug:

The Fourth amendment requires cops obtain a Search Warrant, or have ascertained probable cause before conducting a seach. In this case, they had BOTH....

I really wonder some of you read the article very closely--rather than just a knee-jerk reaction to what you see as an encroachment upon individual rights:
So, to recap:
1. Police had a warrant.
2. Police identified themselves, although they did not knock.
3. Police waited 3-5 seconds before entering.

So, it would seem you folks have your panties all wadded up over much ado about nothing....

Are you guys really agreeing with the defense attorney here, that there is some Constitutional right....to "answer the door in a dignified manner?" :spock:

That's just silly....IMHO.

Perhaps you ought to understand the opinion that you are defending.

Scalia ruled that the Detroit police have admitted from the beginning that they violated the clearly established law regarding the knock and announce requirement.

The decision focussed on whether the exclusionary rule should apply in such a case. Scalia and four others ruled that evidence of criminal behavior should not be excluded because of the constitutional violation.

The opinion does not change the fact that a swat tactical team is supposed to knock and announce and give a reasonable time for the persons inside to allow a peaceable entry in most search warrant executions.

If there is a reasonable belief of danger or evidence destruction if they wait too long the time between knock and announce and forced entry can be reduced.

Interestingly, Scalia advocated the use of civil lawsuits as a more approriate deterrent than the exclusionary rule.

I have one case in which the swat team did a ten second count before breaking in, so when I saw the headline yesterday, I thought I might have to drop that count, but reading the opinion, the knock and announce and wait times can still be grounds for a civil rights lawsuit.

The civil rights cases I have involve clients who were innocent of any crime and only got treated badly because the police made some poor decisions. A lot of the bill of rights amendments case law comes from criminal cases, I think it could be a good thing for the Supreme Court to realize that sometimes these constitutional rights violations occur on people who the police quickly find out are innocent and that the exclusionary rule never comes into play when there is no evidence to suppress because the police should not have been there in the first place.

RedNFeisty
06-16-2006, 03:39 PM
Ok, I’m call’n :BS:.
If Clint’s a stoner, why’s he always so pissed? :shrug: :bong:

True story, I swear!

He mumbles something about not getting enough being the reason he is so pissy. I don't pay much attention so I don't really know why. :)

htismaqe
06-16-2006, 03:42 PM
Clint's pissy because he comes here and has to see all the whiney bullshit from you gay losers...

Just ask him, he'll tell you. :D

BucEyedPea
06-16-2006, 03:46 PM
Seriously, that logic says that local entities should be in charge of determining our civil rights would allow local jurisdictions to set whatever standards they wanted on any issue.

I said that because that does not make Scalia or Roberts klansmen.
I don't know if what the state does to a person would be classified as a "civil" right. I thought that meant between citizens.

listopencil
06-16-2006, 03:48 PM
S For instance I don't know of any "knock-and-announce" clause in the Constitution. You'd think police would want to protect themselves too.



U.S. Constitution:

Fourth Amendment - Search and Seizure



"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."


The key here is what is to be considered "unreasonable".

BucEyedPea
06-16-2006, 03:51 PM
U.S. Constitution:

Fourth Amendment - Search and Seizure

"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."

The key here is what is to be considered "unreasonable".
I'm aware of that. Unfortunately what is reasonable comes down to opinion. See all above posts.

RedNFeisty
06-16-2006, 03:52 PM
Clint's pissy because he comes here and has to see all the whiney bullshit from you gay losers...

Just ask him, he'll tell you. :D

That is almost it word for word!! ROFL

listopencil
06-16-2006, 03:59 PM
I'm aware of that. Unfortunately what is reasonable comes down to opinion. See all above posts.


It seems that so far "reasonable" has been that the cops knock and wait 15 to 20 seconds. The law can not be changed to make convicting the guilty easier at the expense of the rights of the innocent or we are losing one of the principles that this country was founded upon. What's next? The "War On Illiteracy" that will allow the local librarians to come into my home unannounced to check for overdue books? Maybe the "War On Obesity" that will allow strip searches of anyone waiting at a line at McDonald's?

BucEyedPea
06-16-2006, 04:02 PM
It seems that so far "reasonable" has been that the cops knock and wait 15 to 20 seconds. The law can not be changed to make convicting the guilty easier at the expense of the rights of the innocent or we are losing one of the principles that this country was founded upon. What's next? The "War On Illiteracy" that will allow the local librarians to come into my home unannounced to check for overdue books? Maybe the "War On Obesity" that will allow strip searches of anyone waiting at a line at McDonald's?
Well guess what...it just was wasn't it?
Did you read jettio's post?
Did you read mine?
I'm not interested in getting into it all over again.

WilliamTheIrish
06-16-2006, 04:10 PM
The civil rights cases I have involve clients who were innocent of any crime and only got treated badly because the police made some poor decisions. A lot of the bill of rights amendments case law comes from criminal cases, I think it could be a good thing for the Supreme Court to realize that sometimes these constitutional rights violations occur on people who the police quickly find out are innocent and that the exclusionary rule never comes into play when there is no evidence to suppress because the police should not have been there in the first place.

What poor decisions did they make? I'm interested because these cases bother me more than just about anything else.

I can't understand activating the goon squad to take in a guy who could be taken by easier means.

listopencil
06-16-2006, 04:11 PM
Well guess what...it just was wasn't it?



So you agree with me then. As you said, the law was just changed to make it easier to convict the guilty at the expense of the rights of the innocent and we are in the process of giving up one of the principles that this country was founded upon. Welcome to Amerika.

BucEyedPea
06-16-2006, 04:12 PM
So you agree with me then. As you said, the law was just changed to make it easier to convict the guilty at the expense of the rights of the innocent and we are in the process of giving up one of the principles that this country was founded upon. Welcome to Amerika.

You're gonna have to read what I posted earlier....as I asked more questions.

patteeu
06-16-2006, 05:26 PM
I shouldn't have worded my response the way I did. What I meant was "In the vast majority of cases in which homes are burgled" in case that was confusing. But wrt the police conduct, protecting the majority at the expense of the few is directly antithetical to everything the Bill of Rights stands for.



Indeed, you seem to be arguing that the exclusionary rule is simply an antiquated custom from yesteryear. Judges are usually going to defer to the judgment of the officer in most cases, unless there is really compelling evidence not to do so. You are willing to put a very heavy burden on those with little in the way of legal resources. The 4th amendment is designed to protect people from government intrusion, both from judges and police. Simply because we involve a judge does not guarantee that the 4th Amendment should have been satisfied.

I guess I'm arguing that the exclusionary rule is a judge-made rule that shouldn't be considered as sacred as a constitutional mandate. In fact, I'm skeptical of the exclusionary rule even in cases where a search was illegal for lack of a required warrant. Much more so when the "flaw" is merely the lack of a knock and an identifying announcement.

It seems to me that if an innocent person becomes the victim of such a search, the exclusionary rule does him no good and as a result cannot be considered a remedy at all. It is only in the case where the person searched is in fact guilty (of something) that the exclusionary rule provides some kind of relief. Perhaps a better approach would be to have signficant penalties/remedies available to innocents who are subjected to a tainted search and/or penalties for officers who perform tainted searches. Ideally, these remedies/penalties should be legislatively derived, IMO.

There might be some scenarios where I could be convinced that an exclusionary rule would be appropriate though. The bloody glove in OJ's driveway is a possible example where Officer Furman jumped OJ's fence without a warrant and had ample opportunity to plant evidence there. But if I supported excluding it, it would be at least partially on the basis that it might not be legitimate evidence rather than exclusively on the basis that the search was flawed. Of course, we have juries who can decide how persuasive evidence is too, so I'm not sure how I'd come down on this.

patteeu
06-16-2006, 05:37 PM
So you agree with me then. As you said, the law was just changed to make it easier to convict the guilty at the expense of the rights of the innocent and we are in the process of giving up one of the principles that this country was founded upon. Welcome to Amerika.

I don't think much of the exclusionary rule was in place when this country was founded. Sometimes we think that the way things are is the way things have always been but that's often not the case.

listopencil
06-16-2006, 05:58 PM
I don't think much of the exclusionary rule was in place when this country was founded. Sometimes we think that the way things are is the way things have always been but that's often not the case.

I was referring to the Fourth Amendment.

patteeu
06-16-2006, 06:06 PM
I was referring to the Fourth Amendment.

Well in that case, you're right that that's been there from the beginning, but I question your statement about "giving up one of the principles that this country was founded upon" since this thread isn't about giving up any part of the 4th amendment as it was recognized at our founding.

Adept Havelock
06-16-2006, 06:18 PM
Well in that case, you're right that that's been there from the beginning, but I question your statement about "giving up one of the principles that this country was founded upon" since this thread isn't about giving up any part of the 4th amendment as it was recognized at our founding.
I'd disagree, as the 4'th amendment directly derives from an older principle of English Common Law in the Magna Carta that was even more explicit. Something about The wind and rain may enter a man's home, but the king or his men may not. I don't think that understanding has changed much over the years. :shrug:

listopencil
06-16-2006, 06:19 PM
Well in that case, you're right that that's been there from the beginning, but I question your statement about "giving up one of the principles that this country was founded upon" since this thread isn't about giving up any part of the 4th amendment as it was recognized at our founding.


A private individual's house, papers, person, etc. is/are supposed to be inviolate except under some pretty serious circumstances. Even when a government official has to inspect, a certain dignity must be afforded to the citizen. This right determines how our government deals with us on a very personal basis and establishes certain boundaries in the relationship. The concept, to me, hinges on interpretation of "unreasonable". I think it is reasonable for cops to take time to identify themselves because there are special rules that we have to follow when we as private citizens deal with them. They owe it to me to make every effort to identify themselves and to communicate their actions when they plan to do something that may compromise my Constitutional rights as an American citizen.

jettio
06-16-2006, 06:22 PM
What poor decisions did they make? I'm interested because these cases bother me more than just about anything else.

I can't understand activating the goon squad to take in a guy who could be taken by easier means.

It is a detailed story, I could e-mail you the complaint in the search warrant-tactical team entry case. You would have to pretend that the names are redacted and not broadcast them since I don't want BucEyedPea or Donger trying to follow me around.

Definitely a case of unnecessary and hasty deployment of the tactical team when other means of approaching them and clearing them as suspects were available.

I think the guys that volunteer for tactical entry love doing that stuff, which is fine, but I think they should feel more remorse when it turns out that the warrant they just executed was based on BS or a sloppy investigation.

BucEyedPea
06-16-2006, 06:28 PM
It is a detailed story, I could e-mail you the complaint in the search warrant-tactical team entry case. You would have to pretend that the names are redacted and not broadcast them since I don't want BucEyedPea or Donger trying to follow me around.


Now why would I do that?:harumph:

Not that I think you should publically issue it.

jettio
06-16-2006, 07:29 PM
Now why would I do that?:harumph:

Not that I think you should publically issue it.

You gave me a red dot neg rep for post #79, even though all other indications are that you appreciated the post.

When stuff like that starts happening, it is time to sleep with one eye open. :eek:

BucEyedPea
06-16-2006, 07:55 PM
You gave me a red dot neg rep for post #79, even though all other indications are that you appreciated the post.

When stuff like that starts happening, it is time to sleep with one eye open. :eek:

I've never neg repped you. I meant to pos rep you and that was my only rep to you. In this thread right? I musta hit the wrong button. I did that once before.
I only neg rep those who do it to me, and that's rare I even do that.

I actually had a lotta respect for your post... thought it was informative.

BucEyedPea
06-16-2006, 08:02 PM
Yeah! I just checked post #79. That was definitely supposed to be a pos rep.
I don't even recall hitting the wrong button either...but I guess I did. My apologies sir. I wish I could change it.

WilliamTheIrish
06-16-2006, 08:12 PM
It is a detailed story, I could e-mail you the complaint in the search warrant-tactical team entry case. You would have to pretend that the names are redacted and not broadcast them since I don't want BucEyedPea or Donger trying to follow me around.

Definitely a case of unnecessary and hasty deployment of the tactical team when other means of approaching them and clearing them as suspects were available.

I think the guys that volunteer for tactical entry love doing that stuff, which is fine, but I think they should feel more remorse when it turns out that the warrant they just executed was based on BS or a sloppy investigation.

That (bolded) is exactly why a local cop got killed in the story I told. For the life of me, I can't understand why it's okay for a city to have it's LEO's blast in to bust a guy who is not a threat.

That shiot has got to stop.

Logical
06-16-2006, 08:16 PM
You might look at some of the cases I listed above, especially the first one, before assuming I would be found innocent. Corey Maye probably felt the same way.

This is just another case of increasing the states power at the expense of the individuals.

As for your idea it makes no sense that they need to knock, perhaps in a few cases it might help save police lives. If they do knock, it probably would help save a few lives in cases like the ones I listed above.
I think I am disappointed, here is a case where I am defending a position on the conservative side and not one single liberal attacks my position. In fact the only response is based on the chance that someone will be injured unnecessarily due to the lack of the knocking, not exactly the argument I would have expected. Also where are all the conservaitives who are not taking note of my being on this side of this argument (except Kotter). Has my time on the liberal side of many issues disarmed the liberals and put me off limits, if so that is disappointing.

BucEyedPea
06-16-2006, 08:17 PM
I noticed your stand.

patteeu
06-16-2006, 08:48 PM
I'd disagree, as the 4'th amendment directly derives from an older principle of English Common Law in the Magna Carta that was even more explicit. Something about The wind and rain may enter a man's home, but the king or his men may not. I don't think that understanding has changed much over the years. :shrug:

We're talking about the exclusionary rule here, not unreasonable searches and seizures in general. There is nothing in what you've said here that can be reasonably construed as an exclusionary concept.

patteeu
06-16-2006, 08:51 PM
A private individual's house, papers, person, etc. is/are supposed to be inviolate except under some pretty serious circumstances. Even when a government official has to inspect, a certain dignity must be afforded to the citizen. This right determines how our government deals with us on a very personal basis and establishes certain boundaries in the relationship. The concept, to me, hinges on interpretation of "unreasonable". I think it is reasonable for cops to take time to identify themselves because there are special rules that we have to follow when we as private citizens deal with them. They owe it to me to make every effort to identify themselves and to communicate their actions when they plan to do something that may compromise my Constitutional rights as an American citizen.

That sounds fairly reasonable to me (except for the last 8 words). It would make a good argument to present to a legislature. It's not a an inalienable or constitutional right though, IMO.

listopencil
06-16-2006, 08:52 PM
I think I am disappointed, here is a case where I am defending a position on the conservative side and not one single liberal attacks my position.




From what I've read you aren't taking the Conservative side of things. There isn't any reason for the Liberals to attack you. You are attempting to make their case.

patteeu
06-16-2006, 08:55 PM
Yeah! I just checked post #79. That was definitely supposed to be a pos rep.
I don't even recall hitting the wrong button either...but I guess I did. My apologies sir. I wish I could change it.

I gave him some positive rep to make up for you. It's not often I find reason to give Jettio positive rep so this was a good excuse for doing so.

patteeu
06-16-2006, 08:58 PM
I think I am disappointed, here is a case where I am defending a position on the conservative side and not one single liberal attacks my position. In fact the only response is based on the chance that someone will be injured unnecessarily due to the lack of the knocking, not exactly the argument I would have expected. Also where are all the conservaitives who are not taking note of my being on this side of this argument (except Kotter). Has my time on the liberal side of many issues disarmed the liberals and put me off limits, if so that is disappointing.

I guess you didn't get any arguments because you made sense for a change. :p

As for the liberals, Mr. Kotter was your chaff cloud.

.

BucEyedPea
06-16-2006, 08:59 PM
I gave him some positive rep to make up for you. It's not often I find reason to give Jettio positive rep so this was a good excuse for doing so.
That was sweet. I did ask a mod to fix it though. I wouldn't wanna see him lose sleep with one eye opened.

jettio
06-16-2006, 09:01 PM
Yeah! I just checked post #79. That was definitely supposed to be a pos rep.
I don't even recall hitting the wrong button either...but I guess I did. My apologies sir. I wish I could change it.

No problem, you okay by me.

listopencil
06-16-2006, 09:03 PM
That sounds fairly reasonable to me (except for the last 8 words).



Then read the last nine words instead...


"...may compromise my Constitutional rights as an American citizen."


This whole concept hinges on interpretation of the word "unreasonable". Like I said, I think it is reasonable for cops to identify themselves and await response when presenting a warrant. Somewhere around twenty seconds seems reasonable to me. Therefore, as far as I'm concerned, what they are describing is breaking my Fourth Amendment right to protection against unreasonable search and seizure. They are compromising my Constitutional rights as an American citizen.

jettio
06-16-2006, 09:16 PM
I gave him some positive rep to make up for you. It's not often I find reason to give Jettio positive rep so this was a good excuse for doing so.

Oh great, thanks a lot, pretty soon I will have enough points to get a Warpaint Illustrated mini-tomahawk.

patteeu
06-17-2006, 07:57 AM
Oh great, thanks a lot, pretty soon I will have enough points to get a Warpaint Illustrated mini-tomahawk.

:LOL:

patteeu
06-17-2006, 08:03 AM
Here are excerpts from an interesting commentary on the Exclusionary Rule from the LewRockwell website:

In Defense of Evidence: Against the Exclusionary Rule and Against Libertarian Centralism (http://www.lewrockwell.com/kinsella/kinsella14.html)

If a liberal is for it, it’s a safe bet you should be against it. A prime example is the so-called exclusionary rule, according to which evidence uncovered by police in violation of the Fourth Amendment’s prohibition against “unreasonable searches and seizures” is excluded from a defendant’s criminal trial.

...

It wasn’t always this way. At common law, and continuing for one hundred years after the passage of the Fourth Amendment, evidence of the defendant’s guilt was never excluded just because it was obtained illegally. The common law excluded evidence that was tainted by unreliability or suspect probative value – as with the hearsay rule – but probative evidence, regardless of its source, was admissible, since it tended to establish the truth, and, thus, help achieve justice.

In fact, the common law not only did not exclude illegally-obtained evidence, but it even allowed that evidence to retroactively justify what would otherwise be an illegal search and seizure. As stated in a 17th Century English legal treatise: “And where a Man arrests another, who is actually guilty of the Crime for which he is arrested, it seems, That he needs not in justifying it, set forth any special Cause of his Suspicion, but may say in general, that the Party feloniously did such a Fact, for which he arrested him … .” [1] In other words, at common law evidence of the defendant’s guilt provided a complete defense against charges that the search was a violation of the defendant’s rights.

...

The glaringly obvious problem with the exclusionary rule is that it protects the guilty....

...

If the police illegally search the property of an innocent person, however, his rights are violated. However, the exclusionary rule does not provide a remedy for them. In most cases, innocent victims of illegal searches are simply never prosecuted because the search turns up no evidence against them. Even if the innocent defendant is prosecuted and the illegally-obtained evidence is introduced in court, presumably, since the person is innocent, it would not prove their guilt anyway. What the innocent victim of an illegal search needs is to be able to sue the state for damages for trespass and false imprisonment, not to exclude non-existent evidence. (Guilty defendants should have no right to sue for damages, however – it is their fault the police had to go looking for evidence, not the police’s.)

So: the exclusionary rule gives rights to the guilty that they do not deserve and does nothing for innocent victims of illegal searches. How can it be mandated by libertarianism?

....

Source (http://www.lewrockwell.com/kinsella/kinsella14.html)

go bowe
06-17-2006, 02:23 PM
i think i was one of the few students in my law school who actually had some issues with the exclusionary rule...

that article hits it right on the head, it protects the guilty and gives no recompense to the innocent...

go bowe
06-17-2006, 02:24 PM
i'm pretty sure sam alito didn't think much of it either...

BucEyedPea
06-17-2006, 03:32 PM
i'm pretty sure sam alito didn't think much of it either...

To my best knowledge, most conservatives ( if not all...if they're real ones) as well as many libertarians ( some exceptions like a dude over at Cato) have had issues with the exclusionary rule. One of my best g/f's a constitutional attorney, and a conservative has brought up her own difficulties with it over the years.

jettio
06-17-2006, 03:50 PM
The opinion in this case tells gives some of the history of the knock and announce and the exclusionary rule.

I think there needs to be some form of exclusionary rule, maybe not for knock and announce after a warrant has been sworn.

But somebody should not be convicted of a crime for evidence recovered if the police invaded his home without a warrant.

Also, a coerced confession or one given after a request for counsel has been denied should not be admitted into evidence.

banyon
06-18-2006, 09:06 AM
I've never neg repped you. I meant to pos rep you and that was my only rep to you. In this thread right? I musta hit the wrong button. I did that once before.
I only neg rep those who do it to me, and that's rare I even do that.
.

Nope :shake:

banyon
06-18-2006, 09:40 AM
A lot of you seem to think that the exclusionary rule is present to protect people at trial from having evidence seized through an illegal search used against them at trial. Well, yes, in a basic sense.

But the exclusionary rule's real value lies in acting as a check on police power. Without the exclusionary rule, what would be the point of the Fourth Amendment? Police can search illegally however they want and then use that evidence. The Civil trials rarely result in little more than nominal damages, according to the dissent.

AFAICT, this was Breyer's point in the dissent:

For another thing, the driving legal purpose underlying the exclusionary rule, namely, the deterrence of unlawful government behavior, argues strongly for suppression.See Elkins v. United States, 364 U. S. 206, 217 (1960) (purpose of the exclusionary rule is “to deter—to compel respect for the constitutional guaranty . . . by removing the incentive to disregard it”). In Weeks, Silverthorne, and Mapp, the Court based its holdings requiring suppressionof unlawfully obtained evidence upon the recognition that admission of that evidence would seriously undermine the Fourth Amendment’s promise. All three cases recognized that failure to apply the exclusionary rule would make that promise a hollow one, see Mapp, supra, at 657, reducing it to “a form of words,” Silverthorne, supra, at 392, “of no value” to those whom it seeks to protect, Weeks, supra, at 393. Indeed, this Court in Mapp held that the exclusionary rule applies to the States in large part due to itsbelief that alternative state mechanisms for enforcing the Fourth Amendment’s guarantees had proved “worthless and futile.” 367 U. S., at 652...

...Yet the majority, like Michigan and the United States, has failed to cite a single reported case in which a plaintiff has collected more than nominal damages solely as a result of a knock-and-announce violation.

Nominal damages typically are not very stong deterrents against detrimental conduct. If this exclusionary rule precedent were extended to all illegal evidence cases, I agree with Breyer that the Fourth Amendment would be effectively eviscerated. Normally, I would think libertarians would be against these encroachments too. I guess listopencil's libertarian credentials are still solid. :)

patteeu
06-18-2006, 10:54 AM
A lot of you seem to think that the exclusionary rule is present to protect people at trial from having evidence seized through an illegal search used against them at trial. Well, yes, in a basic sense.

But the exclusionary rule's real value lies in acting as a check on police power. Without the exclusionary rule, what would be the point of the Fourth Amendment? Police can search illegally however they want and then use that evidence. The Civil trials rarely result in little more than nominal damages, according to the dissent.

AFAICT, this was Breyer's point in the dissent:



Nominal damages typically are not very stong deterrents against detrimental conduct. If this exclusionary rule precedent were extended to all illegal evidence cases, I agree with Breyer that the Fourth Amendment would be effectively eviscerated. Normally, I would think libertarians would be against these encroachments too. I guess listopencil's libertarian credentials are still solid. :)

That's like saying that without a blowtorch you can't prune a tree when the reality is that a range of other tools could be used for the same purpose and, in many cases, without the negative results.

All you have to do to see that this is true is imagine the extreme case where police officers who perform unconstitutional searches face serious incarceration or even the death penalty and you would see that alternative approaches are just as capable of protecting 4th amendment rights as the exclusionary rule is, without directly benefitting those who are actually guilty.

The libertarian principle here is to protect the rights covered by the 4th amendment not to protect the exculsionary rule or the knock and announce practice.

BucEyedPea
06-18-2006, 11:05 AM
Normally, I would think libertarians would be against these encroachments too. I guess listopencil's libertarian credentials are still solid. :)


Hmm! :hmmm: That's why the op-ed from lewrockwell.com was written?

banyon
06-18-2006, 02:27 PM
That's like saying that without a blowtorch you can't prune a tree when the reality is that a range of other tools could be used for the same purpose and, in many cases, without the negative results.

All you have to do to see that this is true is imagine the extreme case where police officers who perform unconstitutional searches face serious incarceration or even the death penalty and you would see that alternative approaches are just as capable of protecting 4th amendment rights as the exclusionary rule is, without directly benefitting those who are actually guilty.

The libertarian principle here is to protect the rights covered by the 4th amendment not to protect the exculsionary rule or the knock and announce practice.


You'd rather leave those safeguards up to statute(which don't currently exist, of course) than to constitutional principles? The point is that without the rule, there is no sufficient check on police conduct.

Just because we could go to the other extreme and show examples of creating penalties that are too harsh on police conduct doesn't mean that we should eliminate the minimal level of protection now.

banyon
06-18-2006, 02:34 PM
Hmm! :hmmm: That's why the op-ed from lewrockwell.com was written?

I'm not too familiar with that website, but you must mean that all of the writers must agree before publishing an article, or that all articles are handed down upon high from "lew rockwell".

patteeu
06-18-2006, 02:51 PM
You'd rather leave those safeguards up to statute(which don't currently exist, of course) than to constitutional principles? The point is that without the rule, there is no sufficient check on police conduct.

Just because we could go to the other extreme and show examples of creating penalties that are too harsh on police conduct doesn't mean that we should eliminate the minimal level of protection now.

I think legislative action would be a great way to protect this right from overzealous police. If the compensation for innocent victims isn't enough of a deterant as Justice Breyer seems to indicate, then the legislature should step in and enhance the penalty for offending officers. If this were seen as a significant problem, the people would demand such legislation.

patteeu
06-18-2006, 02:54 PM
I'm not too familiar with that website, but you must mean that all of the writers must agree before publishing an article, or that all articles are handed down upon high from "lew rockwell".

You may or may not know that LewRockwell.com is a libertarian website. You probably also know that libertarians disagree with each other from time to time. The commentary that I posted was written by libertarians in response to a pro-exclusionary rule statement made by another libertarian.

banyon
06-18-2006, 02:58 PM
You may or may not know that LewRockwell.com is a libertarian website. You probably also know that libertarians disagree with each other from time to time. The commentary that I posted was written by libertarians in response to a pro-exclusionary rule statement made by another libertarian.


I'm not too interested in the merits or inadequacies of that site. If it's good, then fine. I just thought that BEP's use of it as some sort of ultimate authority was shaky.

banyon
06-18-2006, 03:00 PM
I think legislative action would be a great way to protect this right from overzealous police. If the compensation for innocent victims isn't enough of a deterant as Justice Breyer seems to indicate, then the legislature should step in and enhance the penalty for offending officers. If this were seen as a significant problem, the people would demand such legislation.


It you belive this strongly enough, then there's no need for the 4th Amendment at all. Let's just codify it as USC section whatever.

Otherwise, what's the point of having the Amedment?

BucEyedPea
06-18-2006, 03:04 PM
I'm not too interested in the merits or inadequacies of that site. If it's good, then fine. I just thought that BEP's use of it as some sort of ultimate authority was shaky.


No it's not shaky nor authority...just is what it is...libertarian.
Perhaps right libertarian but libertarian nonetheless.

go bowe
06-18-2006, 03:50 PM
It you belive this strongly enough, then there's no need for the 4th Amendment at all. Let's just codify it as USC section whatever.

Otherwise, what's the point of having the Amedment?well, without the fourth amedment, the numbering of the bill of rights gets all messed up...

jettio
06-18-2006, 03:58 PM
A lot of you seem to think that the exclusionary rule is present to protect people at trial from having evidence seized through an illegal search used against them at trial. Well, yes, in a basic sense.

But the exclusionary rule's real value lies in acting as a check on police power. Without the exclusionary rule, what would be the point of the Fourth Amendment? Police can search illegally however they want and then use that evidence. The Civil trials rarely result in little more than nominal damages, according to the dissent.

AFAICT, this was Breyer's point in the dissent:



Nominal damages typically are not very stong deterrents against detrimental conduct. If this exclusionary rule precedent were extended to all illegal evidence cases, I agree with Breyer that the Fourth Amendment would be effectively eviscerated. Normally, I would think libertarians would be against these encroachments too. I guess listopencil's libertarian credentials are still solid. :)

Actually there was a $2,000,000.00 verdict in a Kansas City case.

A guy lost his only kidney when he was shot by the KCPD executing a warrant based on a false report that there was a meth lab in the house.

The plaintiff did not really plead Knock and announce violation, but a ruling in another criminal case that suppressed evidence on knock and announce came out in the Missouri Western District while the case was pending.

The plaintiff's lawyers thought why not assert another ground and they claimed that it was pled, and the judge ruled that there was enough mention on the search warrant execution to meet the pleadng requiremnts of the federal rules.

When the jury got the case, they felt that the plaintiff deserved big money and that the grounds were the knock and announce requirement.

Somehow the way it was presented to the jury allowed for the 8th Circuit to rule against those grounds and to reverse the judgment without sending it back for a retrial.

In my opinion, the jury would have ruled against the KCPD on one of the original grounds if they did not have the knock and announce before them. I think it was a case of the plaintiff's lawyers winning some battles only to lose the war.

Here is a link to an article about the 8th Circuit decision.

http://www.findarticles.com/p/articles/mi_qn4181/is_20050613/ai_n14664714

The 8th circuit overturned the criminal case ruling also because nobody was home when the police entered without proper knock and announce.

It could be that Scalia is being a hypocrite, because the 8th circuit has proven that conservative judges will side up with the cops on civil cases also no matter what.

banyon
06-18-2006, 04:10 PM
No it's not shaky nor authority...just is what it is...libertarian.
Perhaps right libertarian but libertarian nonetheless.

To clarify, authority as to a source of libertarian ideology.

banyon
06-18-2006, 04:13 PM
Actually there was a $2,000,000.00 verdict in a Kansas City case.

A guy lost his only kidney when he was shot by the KCPD executing a warrant based on a false report that there was a meth lab in the house.

The plaintiff did not really plead Knock and announce violation, but a ruling in another criminal case that suppressed evidence on knock and announce came out in the Missouri Western District while the case was pending...

Sounds like the majority should've cited that case. Still how many times is a guy going to lose his only kidney when the police mistakenly break in?

I still see it as an insufficent check on police power.

banyon
06-18-2006, 04:27 PM
I think I am disappointed, here is a case where I am defending a position on the conservative side and not one single liberal attacks my position. In fact the only response is based on the chance that someone will be injured unnecessarily due to the lack of the knocking, not exactly the argument I would have expected. Also where are all the conservaitives who are not taking note of my being on this side of this argument (except Kotter). Has my time on the liberal side of many issues disarmed the liberals and put me off limits, if so that is disappointing


Ok. Vlad, I'll attack your point.

OK clue me in, sufficient evidence has been found to obtain the court order for a search/seizure warrant, what is the civil right being broken at that point because they don't knock? Even if they did knock and no one answered they can then break down the door. Makes no sense they need to knock.

If a warrant means that police can then conduct the search in whatever fashion they want, so long as they have that slip of paper, then our right to be secure in our homes could mean very little.

jettio
06-18-2006, 05:39 PM
Sounds like the majority should've cited that case. Still how many times is a guy going to lose his only kidney when the police mistakenly break in?

I still see it as an insufficent check on police power.

I may have not explained it clearly, the guy ended up with nothing because the 8th circuit reversed the judgment.

banyon
06-18-2006, 05:47 PM
I may have not explained it clearly, the guy ended up with nothing because the 8th circuit reversed the judgment.

Nah. Your post should've been clear enough for me. I just read your post really lazily.

patteeu
06-18-2006, 08:09 PM
I'm not too interested in the merits or inadequacies of that site. If it's good, then fine. I just thought that BEP's use of it as some sort of ultimate authority was shaky.

I don't think she was suggesting it was the ultimate authority so much as reacting to your implication that listopencil was taking the ultimate libertarian side of this issue.

patteeu
06-18-2006, 08:31 PM
It you belive this strongly enough, then there's no need for the 4th Amendment at all. Let's just codify it as USC section whatever.

Otherwise, what's the point of having the Amedment?

You should recognize that the formulation of the exclusionary rule by a handful of judges (and later refined and modified by others) was not any more magical than an act of a legislature would been. It may have psychological impact when a judge sets policy in the name of "interpreting the Constitution" and judges may have a stronger tradition of respecting decisions of their predecessors, but when you boil it down, there's not much fundamental difference between the two. I think we could use more effort on the part of Congress to protect our rights from the other branches of government.

But having said that, my argument in this thread wasn't that we shouldn't have an exclusionary rule at all. My argument was that we shouldn't view "knock and announce" or the exclusionary rule as a right of all defendents who were subject to a tainted search. If the taint is mild, as it was in this case, the judge should have the discretion to allow the evidence. I think this is how it actually works, but those who are complaining about this SCOTUS decision seem to be arguing that any limitation to the "knock and announce" standard or the exclusionary rule is an infringement of our rights. I do think that a legislative protection would be better, but I am sympathetic to the argument that in the absence of legislative action, judges need to have some ability to enforce constitutional protections.

Logical
06-18-2006, 08:39 PM
Ok. Vlad, I'll attack your point.



If a warrant means that police can then conduct the search in whatever fashion they want, so long as they have that slip of paper, then our right to be secure in our homes could mean very little.I have seen the unfortunate results of a search warrant, once it is allowed you have no security in your home. That has been true for a very long time. Not saying it is right, just telling it like it is in reality.

patteeu
06-18-2006, 08:47 PM
I have seen the unfortunate results of a search warrant, once it is allowed you have no security in your home. That has been true for a very long time. Not saying it is right, just telling it like it is in reality.

Very true. And "knocking and announcing" isn't going to change that much at all.