Supreme Court

The Bill of Suggestions

Why the Supreme Court endorsed unreasonable searches and seizures

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One reality of 21st-century religion is that many people treat the Ten Commandments as the Ten Suggestions, to be modified or ignored without penalty. That same spirit has infected the Supreme Court, which last week contemplated an abuse of the Bill of Rights, rolled its eyes and said: Oh, what's the big deal?

Bennie Dean Herring had gone to a sheriff's impoundment lot in Coffee County, Ala., to get some things out of his truck. A suspicious investigator checked with officials of a neighboring county to see if the ex-convict had any outstanding arrest warrants and was told he did. The investigator arrested Herring and found him in illegal possession of drugs and a gun.

But it turned out there was a problem with the arrest warrant. It had been canceled months before but was never deleted from the database. So when Herring was indicted on drug and weapon charges, his lawyer asked for the evidence to be thrown out because it came from an arrest that the sheriff had no right to make.

When presented with these facts, the Supreme Court reached two conclusions. The first was that everyone agreed the cops had violated Herring's rights. The second was that it was his tough luck. Never mind the Fourth Amendment, which forbids unreasonable searches and seizures—he's guilty and he's going to jail.

This decision creates a new exception to the exclusionary rule, which bars evidence police obtain through an illegal search. The prohibition was meant to foster respect for constitutional requirements by giving law enforcement agents a disincentive to violate them. But Chief Justice John Roberts and four of his colleagues are happy to excuse some violations.

The exclusionary rule, said the court, "serves to deter deliberate, reckless or grossly negligent conduct, or in some circumstances recurring or systemic negligence. The error in this case does not rise to that level." On the contrary, wrote Roberts, it was but a trifle, "the result of isolated negligence."

Of course the error did rise to a fairly significant level—since it deprived Herring of a freedom considered vital enough to be enshrined by the nation's founders. The Constitution doesn't say the government may not violate these rights except through isolated negligence. It says the government may not violate them, period.

Rights need constitutional protection because governments have a tendency to ignore them. But it takes more than a parchment dictate to force the authorities to do what they are supposed to do. It takes penalties that make violations painful to the violator.

That's where the exclusionary rule comes in. Police face constant temptations to break the rules to nab villains and put them in jail. But this rule goes far to discourage them. Violate a criminal's rights, and he may go unpunished.

That wasn't always the case. In the old days, cops paid little attention to the Fourth Amendment because they had nothing to gain by respecting it. Only when they had to pay a price for overstepping did they develop a sudden interest in staying on the right side of the constitutional line—to the benefit of the innocent as well as the guilty. Wonder of wonders, police departments actually began training officers in how to comply with the Fourth Amendment.

After the Supreme Court imposed the rule on states and cities in 1961, New York's deputy police commissioner acknowledged as much. "Before this, nobody bothered to take out search warrants," he said. "[T]he feeling was, why bother?"

Anyone in charge of maintaining databases of arrest warrants may now be asking the same question. In fact, the court's decision creates an incentive for poor record-keeping. If Herring's warrant had been purged promptly, after all, he could not have been searched, and he would have gotten away with his offenses.

That may seem too high a price to pay. But the real objection is not to the exclusionary rule—it's to the Fourth Amendment, since if his rights had not been violated, he would have gone free. The tradeoff between catching criminals and protecting privacy is not a daffy invention of activist liberal judges. It was the framers' whole point.

But the Supreme Court says it's fine for the government to profit when it deprives citizens of their constitutional rights through incompetence or sloth. That's like telling teenagers it's OK to get pregnant, as long as it's not on purpose.

COPYRIGHT 2009 CREATORS SYNDICATE, INC.

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  1. Well said, Steve.

    Boy, good thing we have these “strict constructionists” in the Court! No “living document” here! Just what the framers intended!

  2. Just to be clear, the so-called “exclusionary rule” is itself a dictate not of the Constitution but a construct of activist courts of the 60’s. No such rule existed for most of the country for its first 200, or so, years. So it is odd to characterize this ruling as judicial activism. As for the legitimacy of the exclusionary rule itself, one may reasonably argue that remedies other than suppression of evidence exist to correct illegal conduct on the part of law enforcement. But in any case, the Constitution does not say, as the article suggests, that the right to be free from search and seizure is absolute; it says that such freedom is from “unreasonable” searches and seizures. Where the law enforcement officer has no reasonable part in the apparent negligent act that made the underlying arrest unfounded, s/he acted in good faith. The “good faith” exception to the “exclusionary rule” is long established, and is hardly being created with this ruling–it is merely being reaffirmed under these particular circumstances. Insofar as the exclusionary rule was implemented to remove any temptation by police to engage in misconduct, the logic is that where the offending officer had no part in (or knowledge of) the negligence undermining the first act of arrest, the victims of crime need not be punished by having all subsequent acts and evidence being thrown out do to the unrelated negligence of others. I agree with the logic of this ruling, and it completely within well-established precedent.

  3. Unfortunately “well established precedent” is also well outside the constitutional limits.

  4. Because their daddy (Dictator Bush) wanted it that way. What daddy wants, daddy got!

    RT
    http://www.online-privacy.cz.tc

  5. I am pretty wary of unreasonable searches and seizures — a little more so than even Mr. Balko.

    Nevertheless, I think they should get rid of the exclusionary rule in favor of beefed up civil remedies for fruitless searches.

    More specifically, I think there should be an on-the-spot payment for fruitless searches from the police to the searchee. In the low hundeds for a fruitless car or person search. In the low thousands for home / apt / motel room searches. Plus any actual monetary damages (eg, broken dashboard). I think courts would enforce that kind of thing much better than they enforce the exclusionary rule. I think it would deter bad police conduct more than the exclusionary rule does.

  6. I would also like to know how SCOTUS knew that the little database games here were NOT deliberate conduct.

    For example, does the defendant get to see how many other cancelled warrants are in the database that is checked?

    Wouldn’t less-than-careful keeping of such an important database always be reckless or grossly negligent because of the dire consequences that attach to mistakes? I mean, he could have been false arrested, because of the mistake, even if he didn’t have any contraband. Seems like that kind of mistake is a bit more drastic than lack of “due care.”

  7. If all LEAs had citizen review boards with teeth and balls the exclusionary rule would be unnecessary. However, as they do not it is necessary.

    The money idea wouldn’t stop it. The cops dont care how much taxpayer money they throw away.

  8. AN ALTERNATIVE TO MIRANDA

    If, instead of inventing the Exclusionary Rule, the Supreme Court had instead weakened the Divine Right of Kings ^H^H^H^H^H^H^H^H Sovreign Immunity by allowing the victims to sue law enforcement agencies and agents for violating their rights, I think the country would have been better off:
    There would have been an even better incentive for government to stay inside the law than that provided by Miranda (which “punishes” the offending public master^H^H^H^H^H^Hservant only indirectly). And if it included individual liability, it would encourage bureaucrats to be responsible for their actions.

    For a just society, authority must be balanced by responsibility and accountability.

  9. Perhaps the exclusionary rule is indeed necessary, but isn’t that a policy decision? And aren’t policy decisions the purview of the legislature, and not the courts? When I indicated my agreement with the logic of the ruling, I was not suggesting I agree with the whole construct. Indeed, has anyone wondered why an act that amounts to a state tort is before the Supreme Court? Doesn’t the Bill of Rights begin “Congress shall make no law…”? So why is a local county the defendant to a federal action which asserts against them a provision of a document that does not even mention them as a party? We have become so accustomed to the notion of omnipotent federal power, we don’t even blink about everything being a federal issue. Never mind the amount and type of power. If the locus of all power is to be the federal government alone, we should just eliminate state and local government and save the money. We’ll need it for TARP.

  10. ktc2,

    Most citizen review boards are rife with do-gooders who would love to see them darn druggies locked up forever. For the children of course, no measures are too stringent. That gosh darned Constitution should not stand in our way of killing…er, uh, I mean incarceratin’ them druggies.

  11. Paul,

    Prior to the 14th amendment, this never would have reached the federal courts.

  12. Exactly. Selective incorporation, and such. It has largely eliminated any limit on federal power.

  13. The Founders considered our system of federalism one of the many protections against tyranny. The 14th Amendment and its subsequent interpretations have been used to massively increase federal power, which has resulted in a corresponding elimination of our system of federalism–classic example of a very good thing gone bad. As a practical matter, I don’t foresee that changing any time soon. In the mean time, I worry about the long term implications of omnipotent, centralized government. While small victories such as the exclusionary rule may distract us, the larger issue of the power of the federal government to craft that rule in the first place looms large.

  14. i.e. we be fucked.

  15. Every time I hear somebody huffing and puffing about how the Demos will wreck SCOTUS, I just laugh.

  16. P Brooks:
    Sadly, I agree. Today,the distinction between conservative and liberal is made at such a high altitude, it is almost meaningless. We don’t argue about personal autonomy, liberty, the role of government. No, today we argue only about how much of our liberty (and money) the government will let us keep, and under what circumstances. How much power were give to the government is an argument we lost long ago.

  17. The real problem is that I find it unlikely that any of the nine, heck, the vast majority of judges, have ever had a personal experience with a police officer that would cause them to question the cultural narrative. To them it is *at best* abstract, and at worst apocryphal.

  18. Nevertheless, I think they should get rid of the exclusionary rule in favor of beefed up civil remedies for fruitless searches.

    I would agree, if we would go back to the state of affairs when the Bill of Rights was written, namely, that those issuing or executing a warrant wrongfully could be held personally liable.

    The sovereign immunity that protects the police from personal liability is also a creature of judicial activism, after all.

  19. In libertopia there would be no prohibition of owning meth and a pistol when you are a convicted felon.

  20. #:In libertopia there would be no prohibition of owning meth and a pistol when you are a convicted felon.

    Indeed. In Libertopia, you more than likely wouldn’t BE a convicted felon, because the police would actually have limits on their power.

    In Libertopia, the 2nd Amendment would actually be respected, along with the rest of the Bill of Rights.

    And in Libertopia, you would get your methamphetamine from the doctor, like many kids do at this very moment in the US, for your ADD/ADHD symptoms.

    I, for one, can’t wait to move to Libertopia!

  21. paul makes some good points.

    the premise that the supreme court has endorsed unreasonable searches by virtue of this decision is absurd.

    the issue here is the so called “good faith” exception.

    it is also true that law enforcement agencies in general could learn something about data integrity from the private sector. but this is govt. work. they could learn a lot about a lot from the private sector. having worked as a LEO for many years i’m the first to criticize their inefficiency and failure to use technology. numerous institutional disincentives against efficiency exist. welcome to govt. work.

    however, the exclusionary rule, as noted, is an activist court construct. it is nowhere mentioned in the constitution.

    the remedy was designed (rightly or wrongly) primarily to deter MALfeasance. – intentional wrongdoing, which was not present in this case.

    see: good faith exception.

  22. the remedy was designed (rightly or wrongly) primarily to deter MALfeasance. – intentional wrongdoing, which was not present in this case.

    How do you know that? How do you know that they don’t have two databases, including one in which they maintain cancelled warrants, and another that makes sure the cancelled warrant doesn’t get past the search phase?

    If they didn’t before [i]Herring[/i] why would they not start now?

  23. You have to not read the actual case in order to get really good and worked up. High dudgeon is quickly cooled when reading the facts.

  24. “How do you know that? How do you know that they don’t have two databases, including one in which they maintain cancelled warrants, and another that makes sure the cancelled warrant doesn’t get past the search phase?”

    in a court of law, something you are probably unfamiliar with, you have to have a “good faith basis” to introduce such a claim. here, there is no such requirement. but i don’t have to show there was NOT two databases (all run by the evil cabal that took down building 7!), any more than i have the burden to show there was not a conspiracy by freemasons.

    iow, you have no EVIDENCE for your claim, just speculation that it could be true. again, it could be true that bigfoot put the bad warrant back in the database, but w/o evidence of same, that’s just dumb speculation, much like your post.

    you sound like a truther for pete’s sake, except you have even LESS evidence than they do.

    lol.

    the record in court (have you READ the case? of course not) showed NO (not just little but NO) evidence of intentional misconduct.

    there has been a great discussion of this over at volokh.com btw. good legal libertarian blog.

    again, the only evidence in this case supports unintentional error, and note the error wasn’t even BY the arresting officers, but by a different actor, so to speak. the court ruled that an error made by that actor should not result in exclusion.

    based on the logic of the exclusionary rule – suppression as a remedy to deter police misconduct – this was a sound decision.
    the police relied on the validity of the warrant. THEY did not come to the conclusion it was valid. the agency that kept the data did. and again, there was no evidence that there was ANY intentional misconduct.

  25. The problem with Robert’s reasoning in this case is that it completely igonores the idea that the line between incompetence and intentional misconduct can be very easily blurred or covered up, especially when dealing with computer files and data, which this case most certainly did. How can a court be expected to be able to determine when each one occures?
    Entering and deleting data into a computer, especially when it relates to time sensitive info, is not something that lends itself to determining intent.
    So all Roberts did was decide the case based on the concept that deference should be given to the state in matters of law and order. Which is odd, because I’m not sure how, after reading the Bill Of Rights, that one can conclude the default position rests with the gov’t being given the benefit of the doubt.

    And the appointment of Roberts was supposed to be one of the few highlights of the Bush presidency.

  26. I believe the operative words in 4th Amendment are “reasonable” and “probable”.
    Obviously relying on the police data base is reasonable and probable does not mean correct, just more likely than not. What is so eggregious about this ruling?

  27. “The problem with Robert’s reasoning in this case is that it completely igonores the idea that the line between incompetence and intentional misconduct can be very easily blurred or covered up, especially when dealing with computer files and data, which this case most certainly did. How can a court be expected to be able to determine when each one occures?
    Entering and deleting data into a computer, especially when it relates to time sensitive info, is not something that lends itself to determining intent. ”

    rubbish. intent is exceptionally important, even when difficult to prove in any # of (if not the vast majority) statutes related to criminal and/.or constitutional law.

    the court(s) make such judgments frequently, and this case is no different.

    but yes, generally speaking, absent evidence of intent, intent is not proven.

    here’s a little hint. people make mistakes. those in this particular case are not immune from being human.

    one thing is undisputed. the ARRESTING OFFICERS had no opportunity (let alone intent) to affect the database that they made the arrest under, and were acting in good faith.

    there was no mal or misfeasance on THEIR parts, and the exclusionary rule (invented by an activist court) was not designed to address the issues in the instant case.

    the court did not (contraryt to the title of this thread) endorse unreasonable searches. they merely said that this type of unreasonable search did not warrant the remedy of exclusion.

    big big big difference

  28. “here’s a little hint. people make mistakes.”
    Like leaving your drugs and guns in your car when someone happens to execute an expired warrant on you?

    “one thing is undisputed. the ARRESTING OFFICERS had no opportunity (let alone intent) to affect the database that they made the arrest under, and were acting in good faith.”

    No one is suggesting that the arresting officers ought to be thrown in jail, or lose their jobs. Just that the larger network that they are a part of – the criminal justice system – not be allowed to present evidence against someone that should not have been allowed to be collected in the first place. Everyone understands that mistakes happen. But throwing our hands up in the air and saying “Oh, well” is and odd reaction to have (and it’s even a more odd reaction for a court of law to have).

  29. “No one is suggesting that the arresting officers ought to be thrown in jail, or lose their jobs.”

    that’s good, considering that they did NOTHING wrong. they acted based on their reasonable belief (basis of knowledge was good from their perspective) that a valid warrant occurred. there is ZERO evidence they did ANYTHING wrong.

    ” Just that the larger network that they are a part of – the criminal justice system – not be allowed to present evidence against someone that should not have been allowed to be collected in the first place. Everyone understands that mistakes happen. But throwing our hands up in the air and saying “Oh, well” is and odd reaction to have (and it’s even a more odd reaction for a court of law to have).”

    except you misstate the decision. the decision was that since an error was made in the database portion of the criminal justice system, that the threshold for the remedy of EXCLUSION had not been met.

    the evidence was presented on behalf of the people, fwiw, not law enforcement.

    there are a lot of problems with the (invented) exclusionary rule. one of them is that people whose rights are violated but do not have any illegal evidence found during the search are offered NO remedy by it. iow, the innocent victims of illegal police searches have no remedy under it, whereas the guilty have a remedy.

    regardless, the courts are not saying there is no remedy. there is , for example, a civil law system in case you forget. all they are saying (correctly, if you believe in stare decisis and have read the case law) is that the threshold for triggering EXCLUSION was not met due to the totality of circumstances

    the decision was correct. your argument is that since the result of the decision sux (in your eyes), that the decision was wrong. results based analysis iow, vs. process based.

  30. “I believe the operative words in 4th Amendment are “reasonable” and “probable”.
    Obviously relying on the police data base is reasonable and probable does not mean correct, just more likely than not.”

    I agree that “probable” does not mean correct. But surely the word “reasonable” would seem to imply that the it be correct. The document that gave the the police the power to search someone they otherwise would not have been able to in effect had an expiration date on it that makes it invalid at a certain point. Whether or not the cops that made the search with the withdrawn warrant were aware or not, they were not allowed to search the guy.
    To be free from searches once a warrant has been withdrawn seems to be a reasonable guarantee that every person ought have as guaranteed by the 4th ammendment.

  31. “I agree that “probable” does not mean correct. But surely the word “reasonable” would seem to imply that the it be correct.”

    absolutely false. any # cases show this to be ridiculous. for example, terry v. ohio justifies stops/detention based on the reasonable suspicion standard.

    if the underlying suspicion turns out to be unfounded, that does not vitiate the validity of the original stop.

    you are stunningly wrong.

    you really need to read some case law before making such pronouncements.

    the relevant cases for the exclusionary rule are mapp and weeks.

    there are issues in this case regarding intent, basis of knowledge, reasonableness and locus of control.

    your basic premise seems to be that any unreasonable search warrants triggering the exclusionary rule.

  32. [i]in a court of law, something you are probably unfamiliar with, you have to have a “good faith basis” to introduce such a claim. here, there is no such requirement. but i don’t have to show there was NOT two databases (all run by the evil cabal that took down building 7!), any more than i have the burden to show there was not a conspiracy by freemasons.

    iow, you have no EVIDENCE for your claim, just speculation that it could be true. again, it could be true that bigfoot put the bad warrant back in the database, but w/o evidence of same, that’s just dumb speculation, much like your post.[/i]

    Okay, I’ll play. If police did start doing this, how would a defendant ever prove his claim that the police were doing this deliberately?

    Why would the defendant even have the burden of proof? Why would the prosecutor not have the burden of proof to prove negligence by something other than self-serving testimony?

    Under you view, if something similar happens again in [i]Herring[/i]’s jurisdiction in a future case, then would that raise an inference of deliberation? How many mistakes in a given state until an inference arises that there is a pattern of conduct indicating deliberation?

    Like I said upthd: I want to get rid of the exclusionary rule altogther, but not unless and until civil remedies (especially for small scale intrusions) are made a lot more automatic and litigationless than they are now.

  33. “Okay, I’ll play. If police did start doing this, how would a defendant ever prove his claim that the police were doing this deliberately?”

    the same way you prove intent in any case: witness testimony, inference from a fact pattern, a FACT pattern, etc.

    there is nothing special about this case that makes intent impossible to prove.

    and again, if you had read the case (which it’s pretty clear you haven’t) you would see that the court found no evidence of systemic/institutional practice in keeping bad warrants in the system. iow, yes mistakes were sometimes made, but a systemic pattern of same that could point to intent was not in evidence.

    “Why would the defendant even have the burden of proof? Why would the prosecutor not have the burden of proof to prove negligence by something other than self-serving testimony?”

    negligence is not the issue. again READ THE FRIGGING CASE. i get tired of arguing case facts with somebody who clearly is unfamiliar with the instant case.

    “Under you view”

    it’s not MY view. it’s the view of the court, and is supported by the prior case law, and constitutional law.

    neither of which, it is obvious, you have read.

    “Like I said upthd: I want to get rid of the exclusionary rule altogther, but not unless and until civil remedies (especially for small scale intrusions) are made a lot more automatic and litigationless than they are now.”

    this isn’t about what people WANT. it’s about the constitution, case law, etc. y’know RULE OF LAW?

    read the frigging case. supplement it with mapp and weeks. then, get back to me.

  34. “your basic premise seems to be that any unreasonable search warrants triggering the exclusionary rule.”

    And your basic premise is that I’m an idiot for disagreeing with a rule or long established judicial opinion, a rule which you admit was made up. And if this rule was just made up, why would it be correct to be expanded upon and further validated?
    You seem to be arguing from the position that people should not be surprised with the results of this decision. Well it’s possible to not be surprised with something and yet still disagree with the reasoning behind it (even if that reasoning has precendent to support it).

  35. “And your basic premise is that I’m an idiot for disagreeing with a rule or long established judicial opinion, a rule which you admit was made up. And if this rule was just made up, why would it be correct to be expanded upon and further validated?”

    it’s called “stare decisis”. it was “made up” in the same way the miranda decision was.

    ” Well it’s possible to not be surprised with something and yet still disagree with the reasoning behind it (even if that reasoning has precendent to support it).”

    and if you could offer some kind of rational explanation why the reasoning behind it was faulty, that would be nice.

  36. “and if you could offer some kind of rational explanation why the reasoning behind it was faulty, that would be nice.”

    It’a always been that Herring would not have been allowed to be searched in this instance but for a warrant that was withdrawn, which is then no longer a warrant. Now if a person has the right to be free from an unreasonable search, absent a detailed warrant allowing for it, then an expired warrant seems to be a genuine obstacle to the exception that is carved out for the gov’t when they wish to search someone.

  37. “It’a always been that Herring would not have been allowed to be searched in this instance but for a warrant that was withdrawn, which is then no longer a warrant. Now if a person has the right to be free from an unreasonable search, absent a detailed warrant allowing for it, then an expired warrant seems to be a genuine obstacle to the exception that is carved out for the gov’t when they wish to search someone.”

    ok, now that;’s a good start. but the underlying issue wasn’t “was the arrest and subsequent search of the defendant objectively unreasonable when viewed in hindsight based on the knowledge that the warrant relied on did not in fact exist?”

    the answer is clearly yes to the above question.

    the question is – given this particular fact pattern where no evidence of mal or misfeasance is present in regards to the arresting officers, and where they in good faith relied upon probable cause (the transmission that there was a warrant in hand that was valid) to arrest, but where there was an error on datakeeper’s side, that all evidence points to being both rare and unintentional, does this trigger the remedy of exclusion?

    the answer is clearly no.

    if one reads mapp (and weeks), one sees that the intent and rationale of the exclusionary rule was to act as a disincentive. that, if evidence was excluded when police chose to violate the law, or was excluded when police were grossly negligent in doing so, that this would disincentivize such searches. the goal was NOT to benefit the defendant (even though it does… and note it only benefits GUILTY defendants or at least defendants that possess inculpatory evidence… it doesn’t benefit the innocent at all, since nothing is found incriminating on them to suppress) but to create a discincentive for police misconduct.

  38. Contrast this whole article/thread with the one preceding it – the Ryan Frederick trial. This, even though a SCotUS decision has hardly the significance of the Frederick case.

  39. People PLEASE…

    If we allow the police to get away with having no evidence of mal or misfeasance is present in regards to the arresting officers and where they in good faith relied upon probable cause …the POLICE state of Synapore, China, Napol…will follow shortly in AMERICA.

    We’ve seen in this country way too too too too many examples of BAD COPs, Police and Procecutors acting with malice against people that they don’t even know.

    Please Please Please America…Keep the Exclusionary Rule Alive…for good practice and a free America.

    Trust me, I come from the Dominican Republic…where there is no such thing as the
    -Bill of Rights
    -Warrants
    -Hearings for appeals
    -Civilian Review boards to watch over police
    …let alone the exclusionary rule.

  40. So wait, according to the Supreme Court if police successfully argue that they were acting negligently but in good faith to conduct a search and seizure the evidence obtained therein is good? WHAT?!

    “Your honor, I was under the impression…”

    “Dispatch, if those warrants are bad I don’t want to know about it”

    “Just make me *believe* there is a warrant, I need to break into that house”

    “Screw it, we’ll just tell the judge we thought we were good. Daddy needs a new TV!”

    Nope, I don’t see how this decision could evolve into anything less than substantial improvement of our justice system.

  41. “So wait, according to the Supreme Court if police successfully argue that they were acting negligently but in good faith to conduct a search and seizure the evidence obtained therein is good? WHAT?!”

    again, the ignorance here is astounding.

    here’s a hint. good faith exception is nothing new.

    you make it sound like this is some sort of amazing new precedent.

    oh noes!

  42. Paul wrote:

    But in any case, the Constitution does not say, as the article suggests, that the right to be free from search and seizure is absolute; it says that such freedom is from “unreasonable” searches and seizures.

    Look. It’s not that difficult. The constitution DEFINES what is reasonable, and it is:

    …probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

    So what is unreasonable? EVERYTHING ELSE, obviously!

    That whole re-defining unreasonable business is nonsensical. The constitution is crystal clear in this matter.

  43. I was so annoyed by Paul’s comment that I forgot to point out that the above is the predicate for the WARRANT, and that the WARRANT is required for the search and/or seizure.

    It is far too late to be saved from those who would remix the constitution to suit their own sensibilities. Sadly, we live in a country that has has a government that adjusts the rules limiting it as and when it sees fit.

  44. Carlie wrote:

    If, instead of inventing the Exclusionary Rule, the Supreme Court had instead weakened the Divine Right of Kings ^H^H^H^H^H^H^H^H Sovreign(sic) Immunity by allowing the victims to sue law enforcement agencies and agents for violating their rights, I think the country would have been better off

    Here are the flaws in that reasoning.

    If I screw up, and you sue me, I’m getting my cortex canalized by (the lack of) virtue of having to come up with the cost of defense, and possibly the cost of losing the suit. These are all punitive, and as such, learning experiences. They’re positive, as social events go.

    If the government screws up, first of all, they have no cortex; government employees are transitory at best, and there is no penalty for the individuals or the organization in terms of having to present a defense. Worse, they get paid to do so.

    Secondly, the cost of the defense is borne not by the government, but by you and I, and so they don’t need to be concerned about it. If they need more resources to defend themselves, they’ll just take them from you and I. No one in government is out of pocket. Again, they’re paid to do this.

    Thirdly, if the government loses the case, again, they’ll just take the money to pay the penalty from you and I; no one in the government is out of pocket for this, either. But they were paid.

    The entire idea of suing the government as a matter of correcting its course is ridiculous; what you are doing is suing your fellow citizens, at best, who pay for the government’s mistake. In this matter, the government has arranged to be completely transparent. The government is not penalized, and it…

    Does. Not. Care.

    When the government ignores the constitution, or provides a sophist interpretation though its paid lackeys, the courts and its robust corps of lawyer foot-soldiers, nothing short of extensive civil disobedience is likely to do any good (and even at that, it takes years and millions of participants before the dinosaurs get the message.)

    It’s not going to happen. We are, in a word, screwed.

  45. Dunphy wrote:

    it doesn’t benefit the innocent at all, since nothing is found incriminating on them to suppress)

    The benefit to the innocent is that they can walk around knowing that the officers of the law will not attempt to search them absent probable cause, because in NO case will it work out for said officers if they do so.

    The benefit for the innocent is that there will be fewer times where their families are stressed, their incomes encroached upon, their homes invaded, because there are fewer reasons to get things right in the first place.

    The benefit for the innocent is that there is incentive for the agencies of the law to keep correct, up to date records.

    The benefit for the innocent is that they would live in a land governed by the intent of the constitution, not the sophist blathering of jurists who cannot read plain English and understand what the authors were trying to tell them, though it is patently obvious to anyone with common sense and a basic grounding in the history of the founding events and personages.

    The benefit for the innocent is that they can spend more time in the normal pursuit of life, liberty and happiness, as opposed to being closeted with a lawyer, working through the nonsensical steps of having to defend themselves from unauthorized use of power by law enforcement, lawyers, and the judiciary.

  46. “The benefit to the innocent is that they can walk around knowing that the officers of the law will not attempt to search them absent probable cause, because in NO case will it work out for said officers if they do so.

    you are referring to the general, the aggregate. i was referring to THE innocent who is unlawfully searched. for him, the exclusionary rule offers no benefit. civil court may, but not the exclusionary rule.

    regardless, the point stands. the exclusionary rule was invented to cure specific ills, which were not present in this case.

    thus, the court realized a triggering of exclusion was not warranted in this case.

    the ruling by the scotus is sound.

  47. Dunphy; Please. The ills are present in this case. The man was searched illegally; consequent to this search, he was prosecuted and subjected to huge inconvenience and cost; the government should not be able to search illegally and then prosecute.

    That’s what was intended by limiting the government to the mechanism described by the fourth amendment.

    If the government can search illegally, and prosecute, then it will search illegally and prosecute. Likewise, if the government is not required to obey the fourth amendment, it will not. And sure enough, that’s exactly what we are seeing in many venues, from telecommunications to illegal entry to misuse of financial information.

    Scotus was wrong. So are you. Not that it is going to matter; the government is out of control, very far and very fast down that slippery slope. The end of this is a government that does what it wants, when it wants, and woe betide the citizen that gets in its way, or in the way of the sophists who serve it.

    The end will come with no more than a whimper; no one will face down the jackbooted thugs who call themselves law enforcement. Hitler’s SS were dreaming of a government just like the one that is remaking itself here.

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