New at Reason

Julian Sanchez | October 24, 2005

Shikha Dalmia looks at the federal government's recipe for turning a puddle in your backyard into a legal swamp.

Comments

Dave W.|10.24.05 @ 1:20PM|#

The article leaves some obvious questions unanswered. Did the developer have strong reasons to expect that he was acting illegally? Did the government get the warrant? Did the warrant uncover evidence of illegal conduct?

I mean, I think that prosecutors are out of control whether they are prosecuting alleged thieves, alleged rapists, alleged terrorists, alleged arsonists, alleged destroyers of nature or anyone else.

However, the article seems to advocate that this developer is somehow more worthy of Constitutional protection than rapists, murders or theives. That ain't the way it works, and the article is especially unpersuasive when it fails to contemplate that this guy might have done a bad thing beyond rudeness and procedural obstructionism.

|10.24.05 @ 1:30PM|#

"You can count on your constitutional due process rights if you are a thief, a rapist, or a murderer."

Wrong.

The rest of the article is okay, but fails to recognize that what the prosecutor did in this case is no different from what prosecutors do every day, in thousands of cases.

Larry A|10.24.05 @ 2:05PM|#

However, the article seems to advocate that this developer is somehow more worthy of Constitutional protection than rapists, murders or theives.

I read the article to say that the developer is no less worthy of Constitutional protection. Which should be a slam dunk.

and the article is especially unpersuasive when it fails to contemplate that this guy might have done a bad thing beyond rudeness and procedural obstructionism.

Fourth Amendment:

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

Nothing in there about "unless you've done a bad thing" or "unless you don't have anything to hide."

A prosecutor who questions in court the right to be secure against search should be immediately arrested for violating the developer's Constitutional rights.

alkali|10.24.05 @ 2:18PM|#

Two points:

1) The government doesn't need a search warrant to visually inspect an open field. (That comes from the text of the Fourth Amendment.)

2) If you don't cooperate with the government's legitimate investigation -- for example, you try to stop the government from doing something they don't need a warrant to do, or you don't cooperate with a search for which the government has obtained a warrant -- a prosecutor is within his rights to criticize you and suggest that you were trying to hide something. Is that prejudicial? Well, yes, that's the point. Is it unfairly prejudicial? No.

The district court judge thought that the prosecutor was criticizing the defendant for demanding a warrant for something the government did in fact need a warrant for. The Sixth Circuit disagreed (although one judge on the panel thought it was a close call, and wouldn't have overturned the trial court judge).

|10.24.05 @ 2:37PM|#

"1) The government doesn't need a search warrant to visually inspect an open field. (That comes from the text of the Fourth Amendment.)"

Careful there - the devil is in the details. Are they in a lawful vantage point when they view it?

So yes, they need a warrant (or a warrant exception) to enter the field to make observations or take samples. Usually, they can inspect from a low-flying helicopter, but there are some limits to this, too.

With respect to number 2 - true. As I noted above, this case is no different from any other. If people don't think that the hammer is going to drop when they assert their rights, they're deluding themselves. Prosecutors will push such arguments all day long, even in 5th amendment cases where they're supposed to be prohibited from doing so.

They're paid to win cases, not "do justice".

|10.24.05 @ 3:09PM|#

The local school district bought some land for a football stadium. The neighboring railroad can't keep a drainage ditch clear, so water backs up onto the property. Now it's a Wetland and the feds won't let the stadium be built.

Apparently the Feds do agree that if the ditch is ever cleared and the land drains, then the stadium can be built.

|10.24.05 @ 3:13PM|#

He shifted sand from one part of his property to another without a wetland permit, a felony under the Clean Water Act.

This sort of thing happens more often than you think. ...especially with farmer's who decide to develop their property. ...So many of us think these kinds of regulations only effect evil developers--and good developers like me too--but all kinds of people get pulled into these nets.

alkali|10.24.05 @ 3:16PM|#

Careful there - the devil is in the details. Are they in a lawful vantage point when they view it?

So yes, they need a warrant (or a warrant exception) to enter the field to make observations or take samples.

I don't think that there is any such limitation as to observations in open fields. The police can walk onto property posted "no trespassing," or even jump a fence, and the search is still OK. See Oliver v. US (1984).

|10.24.05 @ 4:03PM|#

"I don't think that there is any such limitation as to observations in open fields. The police can walk onto property posted "no trespassing," or even jump a fence, and the search is still OK"

Mea culpa. I had forgotten about that evil case and its ancestors.

Hmm. though it does contradict some of the caselaw I've seen recently. I need to check to see if PA is different. Oh well.

Dave W.|10.24.05 @ 5:40PM|#

QB,
Your larger point about the 5th Amendment is a good one. Anyway Reason is picking an example of the injustice here that doesn't seem to be much of a sympathetic example because they have some kind of collateral axe to grind re environmental regulation.

For a more sympathetic example of prosecutor abuse (that is, the story Reason should be covering) is here:

http://www.signonsandiego.com/news/metro/20051007-9999-2m7release.html

|10.24.05 @ 5:52PM|#

The local school district bought some land for a football stadium. The neighboring railroad can't keep a drainage ditch clear, so water backs up onto the property. Now it's a Wetland and the feds won't let the stadium be built.

Comment by: bubba at October 24, 2005 03:09 PM

even money that if a drainage ditch is necessary to keep it from having standing water, then it already was a wetland that someone didn't have the good sense to avoid building on

Dave W.|10.24.05 @ 6:07PM|#

or avoid buying the property for that matter (absent appropriate legal protection). Sounds like somebody at the district needs a good firin'.

|10.24.05 @ 6:28PM|#

even money that if a drainage ditch is necessary to keep it from having standing water, then it already was a wetland that someone didn't have the good sense to avoid building on

You know, a lot of the land that people live on today has been improved in some way, much of it by draining. I don't think the suggestion that all of it should have just been left unimproved holds much water. (Sorry, couldn't resist saying that.)

Dave W.|10.24.05 @ 6:51PM|#

I don't think the suggestion that all of it should have just been left unimproved holds much water.

Which is why we generally put gov't in charge of the drainage, rather than people being left to rely on the good grace and diligent work of their neighbors in this respect.

If we did leave these drainage decisions in private hands, you better believe that the tort law woulda grown up a lot different.

|10.24.05 @ 7:35PM|#

JD, I don't know if your comment was entirely or just partially facetious, but look at all of south Florida and New Orleans to see the wisdom of building on and in wetlands. when water is scarce and aquifers are dry, we'll be wanting those wetlands for recharging the aquifers, which is likely to be much cheaper than desalinization.

"unimproved" is subjective. I live in the same culture as most Americans, but I don't consider draining a wetlands for a high school football stadium an improvement

|10.25.05 @ 1:23AM|#

What? An environmental topic and only 15 posts???? [falling off chair, crashing onto floor] What's wrong with everybody today?


Dave W.,

the article is especially unpersuasive when it fails to contemplate that this guy might have done a bad thing beyond rudeness and procedural obstructionism...

This is the environment we're talking about. Why is anything rude necessary? The guy must have been bad. The gov't said so and it's the environment!

Get with the program man.

Anyway Reason is picking an example of the injustice here that doesn't seem to be much of a sympathetic example because they have some kind of collateral axe to grind re environmental regulation.

Yes. There is such a thing as individual rights unless we're talking about the environment. Everybody knows -- and everybody has been taught since at least the second grade -- that THE ENVIRONMENT is sacred above all people, and all other things.

THE ENVIRONMENT would be fine, if not for all the evil people around. Especially the ones who didn't go to public schools.

Reason would you get the program, man. And stop grinding that collatoral axe. Didn't they have you sending letters to your congress critter about saving the environment when you were in grade school? Or didn't you go to a public school?


It is curious that people will reject the concept of original sin in one context, while accepting it fully in another.

Damned people anyway.