Search and Destroy

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In the wake of the 5th Circuit Court of Appeals decision that cops don't need a warrant to search private property as long as they insist it's for their safety and the search is "cursory," the Supreme Court decides that any old search at the border is presumptively reasonable.

NEXT: Big Brother Is Watching You (Really.)

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  1. warrants?

    warrants?

    we don’t need any stinkin’ warrants!

  2. From the link, I don’t understand the problem with the 5th Circuit’s ruling. The cops searched a home after being invited to do so by a resident of that home.

    Are there factors not mentioned in the Houston Chronicle write up?

  3. My understanding is that an occupant can give permission to search the public areas of the house, but not private areas such as bedrooms. To search a bedroom, you need a warrant, or the permission of the person or persons whose bedroom it is. Or, as it turns out, you don’t. 🙁

    I find the fifth circuit ruling reprehensible, but the Supreme Court’s ruling on border searches seems reasonable to me.

  4. Okay, NOW can I worry about the future of our civil liberties without having Bush supporters make tinfoil-hat jokes?

  5. The right of the people to be secure in their PERSONS,HOUSES,PAPERS, and EFFECTS,against unreasonable searches and SEIZURES shall not be violated,etc.
    What`s not to understand?

  6. Once police are given permission into a home, there is a huge list of “reasons” that can be given for further search. The majority of these are subjective to the point of being carte blanche.

  7. Hydroman-
    What’s not to understand, apparently, is the part that says “The above shall be null and void in the name of terrorism, the War on Drugs, the War on Kiddie Porn, or For The Children.”

    Duuuuhhhh. . .

  8. Jennifer,
    Future civil liberties? Where did you get the idea you had any to begin with? Worry all you want. Whadda-yah gonna do?

  9. Hydroman, I don’t understand why it should be illegal for you to consent to a search of your home. The police asked if they could search the home. The occupant said yes. What’s your problem – don’t you believe in property rights?

  10. Jennifer,
    You must have the new Neo-con copy of the Bill of
    Rights.I must update!

  11. Joe,
    If invited, yes as long as they bring their own beer and dubeage.

  12. Joe-
    I think a better way to phrase the question is, “Can your ROOMMATE consent to a search of YOUR stuff.”

    Who wants to bet that we soon reach the legal milestone of “Landlords, not tenants, can consent to a search of their rental properties.”

  13. About time they started to pick things up along our borders.

  14. In the 1950s, it was common for police to set up a roadblock on a highway, and glance in on every car that lined up.

    These were the days of McCarthy, and anti-communism was at it?s peak. ?Un-American Activities? groups scared the living daylights out of impressionable children with horror stories (mostly made up). These weren?t the glory days of civil liberties. The same scared schoolchildren later participated in Kent State and Woodstock.

    It?s unfortunate that these things are happening, but as Jefferson once said, the tree of liberty must be refreshed from time to time.

    I don?t like these intrusions anymore than anyone else, but I can?t do anything about it by wringing my hands and furrowing my brow. I guess I?m not so naive to believe this is the first time America has had it?s Constitution assaulted. It probably won?t be the last.

  15. Thanks, Jennifer. Got it.

  16. kmw,
    Check your history, our first Neo-Con President,
    Abe Lincoln suspended the Constitution for several
    years.

  17. The two political parties spend lots of time vetting potential judges regarding abortion and affirmative action, but nobody thinks to ask them about the plain language of the bill of rights.

  18. Hydroman

    What about J Adams and the Alien and Sedition Acts?

  19. KMW-
    You bring up an interesting question. Is this just another one of those historical burps that’ll make history teachers fifty years from now shake their heads and say, “Well, class, Americans were scared enough to be hysterical,” or is this TRULY the beginning of the end of America, Land of the Free? Seems to me it could go either way at this point.

    Consider this analogy: for several centuries, any Roman citizen who said “The collapse of the Empire is imminent!” would have been a paranoid fool. But eventually, that delusion became the truth. Statistically, it’s not too likely that America will be the first empire in history to never decline or collapse. So I ask again: are we experiencing a minor glitch, or The Beginning of the End?

  20. Hydroman,

    I didn’t say it was the first time. I used it as an example.

    I said the current situation wasn’t the first time. And like you just proved, it isn’t.

  21. IB
    You got it.
    Jennifer,
    See the light at the end of the tunnel? Guess what?

  22. moral of the story: Don’t invite the police in, make them get a warrent. And call your lawyer.

  23. Look, it’s no big deal. If you’re not a Je-, I mean a criminal, you have nothing to worry about…

  24. Jennifer,

    I ponder all too often the fate of these United States. My loathing of Bush/Ashcroft/Rove is probably equal to your own. I too question the state of civil liberties and wonder if this is the beginning of the end.

    In the end, I look at history, and have enough faith in the human psyche to overcome repression eventually. I burnt myself out working about how much freedom Ashcroft was taking away, and finally just decided to fuck it. I?m just going to live my life. If things get too bad, I?ll just move to Canada. (I?m pretty close to the Canadian border.)

    I?ve realized that history is full of examples of rights being taking away, and the ensuing struggle to get them back. Thomas Jefferson theorized that the sea of liberty is not without a wave, further noting that blood must be spilled from time to time in defense of it. So my thoughts are, even if some are made martyrs in the process, the desire for liberty will eventually win out.

    I guess the best question to ask is whether Americans are too complacent to make a big stink about this. One indicator will be what happens this fall, in the presidential election. Are civil liberties enough of a concern that Bush gets voted out of office? I guess we?ll have to stay tuned.

  25. KMW,
    Americans seemed pretty goddamned complacent about the theft of the last election. What infuriated me was that when I would complain about it to Republicans I knew, the response was, “So what? It happened and it’s over. Get over it.”

    Imagine if the cops tried that with rape victims: “So what? It happened and it’s over. Christ, he pulled it out when he was done, didn’t he?”

  26. Jennifer,

    Sorry, you’re normally very sensible, but the Republicons did not steal the 2000 election. The Republicons you speak to obviously don’t know Florida election law (like most everyone else), otherwise they would give you this explanation.

    Had the Democraps gotten away with their plan to conduct illegal “recounts” (the ballots were all counted and recounted according to the election laws of Florida, ie by machine, except for some military absentee ballots, which were rejected due to complaints by Ds, and the one county still using hand marked ballots; pop. 1800) they would have stolen the election. The Gore team’s attempt to change uncountable ballots into votes for algore was a blatant attempt to violate that law. Fortunately the SCoUS recognized that and stopped the farce. ALL the Justices rejected the decision of the obviously partisan SC of FL, 4 wanted to send it back for more deliberation by those wise sages, 5 said “fuck it, those clowns are gonna keep trying to facilitate this illegal conversion of unreadable ballots to votes for Al so quit now!”

    So rather than a “rape” there was an “attempted rape” and you have misidentified the perpetrator.

    In the 2002 election I voted to have all the SC of FL justices removed from office (we get to do that).

    However except for the blow that would have been struck against the rule of law

  27. a couple. Hell, maybe I’m coming soon to a jurisdiction near you.

    I agree largely with the libertarian critique of the direction taken in search and seizure law over the last 15 years. The Terry stop reasoning is getting expanded beyond all reason, as are the exceptions – exigent circumstances, “administrative search”.

    But I have a major problem with flyweight quality libertarian commentary on the law. It establishes easily demolished strawman arguments, which the other side then destroys- followed by preening commentary that the libertarian critique has no merit. If an ounce of prevention is worth a pound of cure, a gram of solid argument about the law is worth a ton of hysterical predictions of the death of liberty.

  28. This is a scary story. BTW, does anyone know what sort of building this was? Were there public parts clearly delineated from private accomodation areas?

    BTW, if you think things are getting bad in Jefferson’s Republic, you should see what that clown David Blunkett, Britain’s interior minister, has in mind back here in Blighty. Trial by jury, presumption of innocent, double-jepoardy, use of warrants, etc. He wants to trash the whole lot.

    And the joke of it is, most of the modern Labour govt. here are stuffed with lawyers.

    P

  29. From the case:

    “Louisiana deputy sheriffs, having received on October 17, 2000, a telephone warning that Gould, known to be a convicted felon with a reputation for violence, was planning to kill two local judges, went that same evening to the approximately 14 x 16 foot trailer where Gould lived to talk to him, not then intending to arrest him. The officers, who had neither a search nor an arrest warrant, were admitted by another resident of the trailer, Dennis Cabral, who said Gould was asleep in his bedroom. The officers entered and proceeded down the hall towards the bedroom Cabral had indicated. The bedroom door was open, but the officers did not see Gould, and they then conducted a brief protective sweep for him, looking under the bed and opening the door to each of the two bedroom closets, in one of which they saw in plain view, but did not then seize, three rifles. They promptly then ran outside and later found Gould hiding in the woods. In subsequent questioning Gould stated he was keeping the rifles for their owner, a female acquaintance. Gould was then arrested, executed a consent to search, and the rifles were then seized.”

    The State of Louisiana asserted that the Buie doctrine applied. That case allows police to make a protective sweep – a brief search for hidden, dangerous persons – when they are legitimately present to make a lawful arrest. In other words, if they are in your house to arrest you, they can quickly look around in the closets and surrounding rooms, and maybe an upstairs bedroom with a window facing your police cruiser, to determine if a buddy of yours is getting ready to ambush them. The sweep is a brief look for persons, not going through your underwear drawer to seize your stash and your back issues of “Hot Airbrushed Wimmin”. As the Supreme Court put it, “The Fourth Amendment permits a properly limited protective sweep in conjunction with an in-home arrest when the searching officer possesses a reasonable belief based on specific and articulable facts that the area to be swept harbors an individual posing a danger to those on the arrest scene.” Buie is restricted by the Chimel case, which limits the scope of the sweep to persons who could readily intervene in the situation, or weapons or other dangerous instrumentalities within reach of the arrestee. Buie sweeps are limited on their own terms, to “a cursory visual inspection of places where a person might be hiding.” The test applied in Buie was a reasonableness test – was the action of the police reasonable, under the circumstances?

    The question in this case, Gould, was whether Buie required the police presence to be pursuant to an arrest warrant executed in a home, or whether legitimate police presence in the home permitted a sweep. The Fifth Circuit followed the lead of courts in five other circuits, and held that a Buie search was permissible so long as its intrinsic terms (reasonbleness, cursory sweep for persons) were met, and the police presence was constitutionally sound. The court noted that in the courts rejecting Buie sweeps under similar circumstances, the police presence was held to be unconstitutional, or the “sweep” was actually a “search” delving into handbags or wastebaskets.

    The sweep in Gould seems reasonable. Granted, the Fifth Circuit wrote up its summary of the facts to be as supportive of its legal opinion as possible, which all judges do – but the facts appear to make the police action seem sort of reasonable: (1) convicted felon (2) with a reputation for violence (3) presently making death threats against judges and (4) living in a trailer (come on, people, don’t you watch “Cops?” [just kidding, trailer dwellers].

    Is it reasonable for police in that situation to look under the bed and in the closet to make sure he’s not about to ambush them, before they leave the house? I think so.

    Granted, this is sort of a close question, and it is yet another case that attacks our notions of general liberty (e.g. “it’s a free country, ain’t it?”) based on Terry v. Ohio. But the ACLU (and posters here) understanding, that the 5th Circuit eliminted the warrant requirement of the 4th Amendment, is fever swamp, methane gas huffing, malarial-grade delusional.

  30. Jennifer,

    Unfortunately, those past police state interludes haven’t been just discrete “burps.” Since the “Constitution,” unfortunately, is defined by precedent rather than the (apparently useless) text of the document, each war dictatorship or Red Scare serves as a precedent for future Great Wartime Leaders. That’s why you see neocons today appealing to Father Abraham as proof that it’s OK to destroy the Constitution in order to save it. Or worse, neocons who claim to favor small government appealing to the Quirin decision or U.S. v. Curtiss-Wright under FDR. (Next thing you know, these alleged “conservatives” will be calling for a revival of the NIRA).

    It’s hard to believe there was a time when the Right in this country actually disliked FDR. But then, we also live in a time when the “party of Jefferson” uses constitutional arguments on federalism invented by Hamilton and Marshall and assorted Whigs and Republicans–so I guess everything’s been stood on its head.

  31. On the Florida election thing, I think all the recount issues, the butterly ballots, etc., are relatively insignificant (although the role of DeLay and his astroturf mobs gives me the creeps). What made the biggest difference, by far, was Katherine Harris’ purge of thousands of alleged felons from the voter rolls–most of whom were black and likely Democratic voters, and most of whom were in fact not felons at all.

  32. As for Brian’s assertion that the Supreme Court held in Flores-Montano that “any old search at the border is presumptively reasonable” – that’s sheer BS.

    The Court reaffirmed longstanding precedent, that searches of property at the border are presumptively reasonable. This means that Customs inspectors can look into cargo containers or ships for WMDs. Wanna restrict that ability, numbnuts? As the Court noted, the search of gas tanks for contraband (as happened in Flores-Montero) yields 25% of the 18,000+ annual drug busts on the Southern border of California. This one in particular turned up 37 kilos of kind bud.

    As for all searches being presumptively constitutional at the border, they aren’t. Though the question wasn’t before the Court, the Court unanimously reaffirmed, in dicta, the longstanding requirement that Customs must have reasonable, articulable facts pointing toward the smuggling of contraband before an intrusive personal search can be conducted.

    This is just one of many restrictions on the manners & types of searches that can be conducted at the border.

  33. Stephen – So, which state’s bar assn. do you belong to?

  34. Kevin

    In 2000 elections in FL were the responsibility of County Supervisors of Elections (under the post Civil War State Constitution the Governor and Cabinet were relatively weak and even tho said const was updated in 1967 it kept the feature that state powers were widely dispersed to County officials).

    The purging of “felons” names occurred because Katherine Harris’ office (which had general responsibility for elections) sent a raw list of NAMES of convicted felons to County Supervisors of Elections to help them update their lists. In typical dumb bureaucrat fashion said County Supervisors of Elections ran some kind of match/delete routine on their voter lists rather than the rigorous check that should have been done.

    Now perhaps KH should have issued clearer instructions to the County Supervisors of Elections and perhaps she should not have given the contract to collect the names to a Republicon connected firm.

    Ya know what, tho, that’s water under the bridge. You ain’t seen no vote fraud like the vote fraud yer gonna git with “touch-screen voting”.

    And for the record I am opposed to denying convicted felons the right to vote the same as I am opposed to denying their right to own firearms. (provided they have completed their sentences.):)

  35. Rick L, those figures are bogus, and have been deconstructed by Snopes.

  36. Bush vs. Kerry? Looking back on Bush vs. Gore, Professor Joseph Olson of the Hamline University School of Law in St. Paul, Minnesota, gives us a shrewd perspective. Adding up the counties in the U.S. won by the two candidates, it was Gore 677, Bush 2,434. Taking the population of those counties, it was 143 million for Bush, 127 million for Gore. In square miles of land won, Gore 580,000, Bush 2,427,000. The murder rate in Gore counties, 13.2 per 100,000 residents, contrasted with 2.1 in the Bush counties.

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