Warentless searches of properties say goodbye to your rights

[TylerG]

http://www.usnews.com/usnews/news/articles/nest/051222nest.htm

In search of a terrorist nuclear bomb, the federal government since 9/11 has run a far-reaching, top secret program to monitor radiation levels at over a hundred Muslim sites in the Washington, D.C., area, including mosques, homes, businesses, and warehouses, plus similar sites in at least five other cities, U.S. News has learned. In numerous cases, the monitoring required investigators to go on to the property under surveillance, although no search warrants or court orders were ever obtained, according to those with knowledge of the program. Some participants were threatened with loss of their jobs when they questioned the legality of the operation, according to these accounts.

Ok I can't see how this is even thought of as legal. Don't stated constitutional protections override implied powers?

[arctangent]

It occurs to me that if terrorists really wanted to smuggle radioactive material into the US and make nasty weapons with it, they would be smarter to do that in churches and synagogues, or really, anywhere else OTHER than mosques...

[bago]

Cops often don't care about legality (http://www.citypaper.com/news/story.asp?id=11262).

Short story: Undercover cops with refusable warrant try to bust into a man's house, fast moving big man slams and locks them out. He runs down and grabs a gun, calls 911, cocks it trying to get the people who tried to break into his house to leave. Other person does same, but it's an old gun and it goes off in the basement. Police search house and threaten to blow up gun safe. Dude fortunately doesn't get shot or shoot anyone. Cops confiscate the guns, cash, and make up cock and bull story, stall on delivering 911 tapes. When tapes are delivered the police drop their case. Of course they still possess everything they took.

[Rob Beschizza]

I think constitution-waving has had it's day in the U.S., and continuing to try to do it as a bulwark against executive power is not only doomed, but contributary to the problem.

I don't really know why I think this. I think I just come from a place that has a very pragmatic view of its written constitutionalal paraphernalia: it's respected, but too easy to write off as irremediably out-of-place in the modern world.

[bago]

There IS an amendment process you can use just for that purpose.

[Linoleum]

I don't really know why I think this. I think I just come from a place that has a very pragmatic view of its written constitutionalal paraphernalia: it's respected, but too easy to write off as irremediably out-of-place in the modern world.

It would be interesting to see what the Founders would think of people sneaking around checking tiny strips for the purpose of trying to determine the presence of a device not much larger than an average barrel capable of killing a hundred thousand people in a matter of moments.

[Ranulf]

Cops often don't care about legality (http://www.citypaper.com/news/story.asp?id=11262).

Short story: Undercover cops with refusable warrant try to bust into a man's house, fast moving big man slams and locks them out. He runs down and grabs a gun, calls 911, cocks it trying to get the people who tried to break into his house to leave. Other person does same, but it's an old gun and it goes off in the basement. Police search house and threaten to blow up gun safe. Dude fortunately doesn't get shot or shoot anyone. Cops confiscate the guns, cash, and make up cock and bull story, stall on delivering 911 tapes. When tapes are delivered the police drop their case. Of course they still possess everything they took.

One can thank the drug war for that too.

[Jason McCullough]

It would be interesting to see what the Founders would think of people sneaking around checking tiny strips for the purpose of trying to determine the presence of a device not much larger than an average barrel capable of killing a hundred thousand people in a matter of moments.


Oh, when you phrase it that way, of course it's no problem. But when you phrase it this way it is:

I wonder what the Founders would think of federal agents putting remote spying equipment in churches without a warrant.

Because, you know, the entire point of restricting the government is you can't trust them to be nice or reasonable about it.

[Nick Walter]

Aren't churches public places? I thought cops didn't need any warrants to nose around public places? I could be way off base here, I'm going on a vague memory from a few criminal justice and law classes in college.

[Jason McCullough]

Wikipedia (http://en.wikibooks.org/wiki/US_Criminal_Law/Searches_without_a_warrant) talks like cars, plain view, and open fields are the significant exemptions that aren't blatantly obvious.

I don't get why cars are exempt, though. Reads like a total excuse for cops to do whatever they want.

[TriggerHappy]

Wikipedia (http://en.wikibooks.org/wiki/US_Criminal_Law/Searches_without_a_warrant) talks like cars, plain view, and open fields are the significant exemptions that aren't blatantly obvious.

I don't get why cars are exempt, though. Reads like a total excuse for cops to do whatever they want.

That's a fairly extreme interpreation I think. It does require probable cause, and your own link explains that it's because of the regulations already in place governing motor vehicles.

Probable cause may be a bit easy to get these days, but it's hardly doing 'whatever they want'.

[Jason McCullough]

Oh, I understand how the legal chain of reasoning is plausible. But in reality? A cop can just make up something if he wants to search your car and nothing will ever happen to him for it.

[TriggerHappy]

In theory, if he did find something and it went to court, your defense attorney would try to argue he didn't have probable cause and the evidence would be thrown out.

That's the way it works on TV, anyway!

[Linoleum]

I'm also really not sure that the detection of alpha/beta/gamma radiation constitutes either search or wiretapping. Tresspassing on the other hand...

[Jason McCullough]

You need to have warrant to use one of those things that lets you hear what's coming out of a place through the windows, right?

In this specific instance, no one is going to get very upset about the government looking for radiation coming from your house. It's that they didn't feel the need to actually get a goddamn warrant like they should have.

[Flowers]

If you use a high tech device to monitor things that normal people can't monitor while driving past someone's house, and you are the police, you needed to have a warrant.

Yes I know. We'll cross that bridge when we come to it.

Expectation of privacy. It covers expectation of privacy whilst doing wrong.

[Flowers]

That's a fairly extreme interpreation I think. It does require probable cause, and your own link explains that it's because of the regulations already in place governing motor vehicles.

Probable cause may be a bit easy to get these days, but it's hardly doing 'whatever they want'.

In many states, police officers have the power to make an arrest for traffic violations. The police officer may mentally arrest you and then perform a search of your person pursuant to you being taken into custody for his and your safety. Then the police officer may perform a search of everything in your immediate area of control. Then the police officer may perform an inventory search of your automobile in order to safeguard your possessions for when the vehicle is stored at the impound lot.

In those states where a police officer does not have the power to make an arrest for a traffic violation, the car constitutes exigent circumstances. Cars contain possible evidence of wrongdoing and they travel very quickly out of the reach of law enforcement officers. As such, it was deemed reasonable to allow them to be searched when the police officer has probable cause to suspect a crime is afoot. Depending on the suspected crime, his ability to search every nook and cranny of the vehicle may be limited. If he suspects you stole a stereo, he has no business opening tackleboxes in the trunk. If, while searching for the stereo, he notices a suspicious white powder on the tacklebox, he has the right to search the tacklebox, and now, everything in the entire automobile.

So, yes, within if they stop you while you are driving, they can do whatever they want as far as searches go. Your only real hope is that the stop is not valid. That would be a lack of probable cause for the stop, and the fruit of the poisoned tree is itself poisonous. Invalid stop translates to a cop that is a bad liar, that is pretty much it.

Long term, vote.
Short term, don't take wood to the forest.

[Ben]

Flowers- Drug sniffing dogs at the airport don't need a warrant. Same general theory I imagine. If the method of search can only reveal criminal conduct you have no expectation of privacy.

[shift6]

Flowers- Drug sniffing dogs at the airport don't need a warrant. Same general theory I imagine. If the method of search can only reveal criminal conduct you have no expectation of privacy.
The airport isn't your private property, though. You're travelling in a public area. I seem to recall a couple years ago that the SCOTUS ruled (edit: yep, it was US vs. Kyllo) that cops couldn't scan your house with infrared detectors to find passive emissions as evidence of hydronponic growing environment for marijuana.

Specifically, they ruled that such a scan is a "search" as defined by the 4th.

[Chris Nahr]

I seem to recall a couple years ago that the SCOTUS ruled that cops couldn't scan your house with infrared detectors to find passive emissions as evidence of hydronponic growing environment for marijuana.

I'm dumbfounded that anyone would actually try that. The infrared scanning I mean, not the marijuana growing.

"This guy might be growing a small amount of pot for personal consumption! What a horrible enemy of the state! Quick, waste $10,000 on devices and personnel to catch this vile terrorist!"

[Flowers]

Flowers- Drug sniffing dogs at the airport don't need a warrant. Same general theory I imagine. If the method of search can only reveal criminal conduct you have no expectation of privacy.


Correct. Expectation of privacy standard is key here, don't get bogged down with a "reasonably tailored only to reveal criminal conduct" standard. You can win on the first standard, and because many devices other than dogs are difficult to use in a fashion that does not reveal noncriminal information, such as genital size, to use the second standard would invite confusion and allow your opponent to argue that the second standard is dispositive. I would say that in cases of search and seizure, the government is best served by playing only its strongest suits and then not addressing American's secondary arguments.

[Flowers]

I'm dumbfounded that anyone would actually try that. The infrared scanning I mean, not the marijuana growing.

"This guy might be growing a small amount of pot for personal consumption! What a horrible enemy of the state! Quick, waste $10,000 on devices and personnel to catch this vile terrorist!"


The device is insanely effective. They can just drive through neighborhoods and scan every house in a matter of hours. A county could probably make the price of the machine back in drug fines many times over before the end of the fiscal year.

The device is unconstitutional to use without a warrant for the reason shift6 says, and for the fact that it is not readily available to the average consumer, and as such, the average homeowner does not expect the average citizen to be able to ascertain the heat signature of him and his wife in conjugal embrace when they are in their bedroom. (Reasonable expectation of privacy.)

[bago]

Well, hopefully they're more effective than field narcotics tests (http://www.miami.com/mld/miamiherald/13504147.htm).