US Constitution Discussion, Part 15: Amendment IV

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US Constitution Discussion, Part 15: Amendment IV

Post by Martin Blank » Tue Sep 16, 2003 5:17 pm

Previous discussion part: US Constitution Discussion, Part 14: Amendment III

Articles and Sections are offset by bold text; and underlined text has been modified, superseded, or repealed by Amendments, and generally are no longer in effect.

Article IV.

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.


Ratification completed December 15, 1791
Last edited by Martin Blank on Sat Sep 20, 2003 1:21 am, edited 1 time in total.
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Post by SothThe69th » Tue Sep 16, 2003 5:29 pm

Now there has been talk of the Patriot Act nullifying this to an extent, much stuff here, which, preternaturally, annoys me to no end, I'd be particularly interested in others feelings on that.
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Post by Martin Blank » Tue Sep 16, 2003 5:30 pm

A day late in getting this one out, too. :?

Anyway, this amendment has had a lot of chatter about it in the last few months. What constitutes a reasonable search and seizure? Under what situations should a judge be required to be involved and when should a law enforcement officer be able to execute a search without a warrant? Some examples of times when they're allowed without a warrant (or at least not yet barred):
  • Upon being stopped on suspicion of committing a crime
  • Upon being stopped at an alcohol or drug checkpoint
  • Upon entering or leaving the country
  • When someone is deemed to be in imminent danger, such as when a possible destination needs to be found when someone has fled with a kidnap victim
There are some new issues coming up with this one. Officers usually have to wait for someone to provide them access if there is a belief that the building is available during reasonable hours. For example, a business will usually be searched during the day, and officers will usually serve a search warrant while someone is home so as to allow the occupant to watch the proceedings and also to allow them to answer questions about ownership.

A recent example of this came a few days ago, when the home of a suspect in the Los Angeles SUV dealership attack was searched. A rifle was found, but because the occupants told them that it was owned by someone other than the suspect, it was not taken. The warrant specified that they could take things related to the attack, or related to extremist organizations with which the suspect could be associated, but because it didn't specify drug paraphernalia, a bong that was sitting in the open was left untouched.

There are other issues, though, with the USA PATRIOT Act, which allows, under certain situations, the government to do a so-called 'sneak and peek', where a warrant is carried out in secret and evidence taken before the suspect is notified -- sometimes weeks before notification. This has left a number of judges skeptical of the possible uses, bringing about memories of the FBI's abuses during J. Edgar Hoover's reign.

At what point does a search become unreasonable? At what point should a search be allowed to proceed without a warrant? Where should people feel secure, and where should they expect the possibility of a search?
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Post by Fixer » Tue Sep 16, 2003 5:50 pm

If the knowledge of the search and / or seizure of property or liberties will significantly impact on an individual's civil rights as protected under the US Constitution, the courts should be allowed to issue 'secret warrants'. If the results of this secret search and seizure are made public, the enforcement agency which served the warrant should be held liable for illegal search and seizure, unless the evidence obtained proves inarguable guilt in a crime. Provided the target of the warrant remains ignorant of the warrant in question, no crime has occurred.

In layman’s terms: If the government can sneak into your house, search through your belongings, and leave with you ever knowing they were there. No crime has been committed. If you should discover this intrusion and are not guilty of a crime for which the search was conducted, you have the right to reparations (preferably very large dollar amounts to prevent abuse of this power). If evidence is found proving guilt in a crime for which the warrant was submitted, the evidence can be used in prosecution against you. If you win your case, you can seek reparations as above. If you are found guilty, you may not seek reparations.

This is the best way I see it happening. It protects the innocent and helps to ensure protection of the public from harmful individuals working in secret.
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Post by Deacon » Tue Sep 16, 2003 6:34 pm

I really dislike the whole Patriot Act thing. The very concept annoys and offends me. It's the one thing the Bush administration has brought about that I disagree with 100%.

To break out that oft-used quote:
Benjamin Franklin wrote:They who would give up an essential liberty for temporary security deserve neither liberty nor security.
It is absolutely imperative to rein in the government on issues like this.
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Post by SothThe69th » Tue Sep 16, 2003 6:40 pm

I think it was passed far too quickly, it was relatively rushed through Congress. Had most of the people who voted for it actually read the dang thing (though it IS 342 pages) I doubt that they would've went for it.
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Post by Martin Blank » Tue Sep 16, 2003 9:03 pm

[quote="Fixer";p="159340"]Provided the target of the warrant remains ignorant of the warrant in question, no crime has occurred.[/quote]
So you don't mind the FBI rooting around in your home just because someone else might have mentioned to someone who happens to be an FBI informant how you once visited a mosque where a terrorist suspect once might have prayed, just so long as you never know about it?
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Post by Fixer » Wed Sep 17, 2003 1:01 pm

[quote="Martin Blank";p="159457"][quote="Fixer";p="159340"]Provided the target of the warrant remains ignorant of the warrant in question, no crime has occurred.[/quote]
So you don't mind the FBI rooting around in your home just because someone else might have mentioned to someone who happens to be an FBI informant how you once visited a mosque where a terrorist suspect once might have prayed, just so long as you never know about it?[/quote]
No, not particularly. As long as they leave things as they found them, I will not know nor care. I have more pressing matters on my mind than whether or not the government is spying on me. I have not done any seditious acts. I am not attempting to overthrow the government, even though there are times I think it is run by idiots. I do not have any connections to any terrorist that I know of, and if someone says I do, I would rather they search my home in quiet than take me into custody, ransack my home and leave it trashed, then release me to be jobless (as my employer is not likely to hold my job while I am being held 'for questioning') with a filthy house and quite possibly months worth of unpaid bills and no money to pay them. See my point?

Personally, with what I am involved in, I am more worried about the drug companies spying on me than the government (for reasons that shall not be explained here, so do not bother asking). The government is the least of my worries.
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Post by Martin Blank » Wed Sep 17, 2003 5:28 pm

So if you come home, and your dishes have been moved around and your computer is on when you know you left it off, only then would you be mad?

I can't live quietly with that concept. The government has no reason to be poking into my home, compiling information on me without my knowledge or consent, just because they might have some vague reason to do so. I haven't done anything wrong, and it's for precisely that reason that they shouldn't be here. If they have evidence the other way, they can knock on my door when I'm home and show me a piece of paper that says where they're allowed to look, why they're allowed to look there, and what they're looking for.
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Post by Rembrandt Q. Einstein » Thu Sep 18, 2003 2:41 am

[quote="Fixer";p="159340"]If the government can sneak into your house, search through your belongings, and leave with you ever knowing they were there. No crime has been committed.[/quote]

um, yeah one has, thats exactly what this entire thread is about...its an illegal search

secondly, Maritn, i was under the impression thateven if you have a warrant for, lets say, drugs, and in your search for drugs you find an assault rifle sitting on the table, it can be confiscated for evidence as it is in "plain sight"

and secondly that if you are searching for a handgun and find a bag o' weed in someones drawer (a aplace a pistol could easily be stashed (pardon the pun)) that it too could be confiscated, but if you were looking for, lets say, an elephant, that you couldnt use the "weed" as evidence since you were not logically looking for an elephant in thier bedroom drawer
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Post by Martin Blank » Thu Sep 18, 2003 3:02 am

Not if it's not on the warrant. The warrant has to describe what they're looking for, and if they're not looking for guns and the person has it legally, they can't take it. They can remove it if it's not clearly legally owned, but it has to stay in the evidence locker for trial. Occasionally, things are returned, or the value of them is paid out if they're destroyed.
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Post by Rembrandt Q. Einstein » Thu Sep 18, 2003 3:06 am

*addendum to my post*

as Maynard once said "If consequnces dictate a course of action/then its only wrong if you get caught/If consequnces dictate a course of action/ I should play god and just shoot you myself"

I hate to use song lyrics, but it just fits too well, just because they search your house and you dont notice doesnt make it legal

secondly, the reason i used an assault rifle for my example was to make it clear it was illegally pwned :)
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Post by Martin Blank » Thu Sep 18, 2003 3:10 am

Why would it have to be illegal? A friend of mine owns three (two AK-47s and one AR-15), all perfectly legit.
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Post by Fixer » Thu Sep 18, 2003 12:55 pm

[quote="Martin Blank";p="160220"]So if you come home, and your dishes have been moved around and your computer is on when you know you left it off, only then would you be mad?[/quote]
Yes, I have come to realize that being ignorant on some matters is better than knowing. By making it clear that they have made a search of my home, they have taken my desire to be ignorant of the matter away, and for that they should have to pay. I now know some things I wish I had NEVER learned (do not bother asking me what, I will not tell you). I recognize this is a matter of opinion, however, and we are not going to change each other's mind. Heaven forbid we disagree! ;)
[quote="Martin Blank";p="160220"]I can't live quietly with that concept.[/quote]
I don't expect you to. Fight for what you believe. On this matter, however, do not expect me to stand with you. (Of course, I won't stand against you either. Both sides have good arguments and I will allow public decision to decide who wins.)
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Post by chaos42 » Sun Sep 21, 2003 7:35 pm

[quote="Martin Blank";p="160841"]Not if it's not on the warrant. [/quote]

For the guns this is true. For the "bong" this may be true as water pipes are legally a legitimate tobacco accessory and only become paraphenalia once used to smoke contraband. If there had been marijuana in plain sight next to it they probably could have taken it. Legally, contraband in plain sight is admissable for seizure even if not listed on the warrant.


Here is an excerpt from COMMONWEALTH vs. ANTHONY DIMUZIO

. It was not unreasonable for Farrari to believe that Gonzales might be hiding behind the bureau, which was pulled a few feet away from the wall. As contraband discovered in plain sight may be seized, the seizure of the bag of cocaine and the box of baggies which was also then in plain sight, was warranted. Commonwealth v. Santana 420 Mass. 205, 210-212 (1995); Commonwealth v. Accaputo, 380 Mass. 435, 447-448 (1980). This did not permit him, however, to pull the drawer out further and to undertake a more thorough search of its contents, which resulted in discovery of the bullet-proof vest and digital scales. Being concerned about this, the officer properly returned those articles to where he had found them in the drawer and applied for a search warrant.

I do understand that this Is a Mass. Case and thus Mass. cases are sited http://www.socialaw.com/superior/9977-18.html

And from Dayton, OH :
The students also suggest privilege exists between an Internet service provider and its clients, meaning e-mail content is private and cannot be revealed by the ISP, and a list of computer files "in plain sight" on the screen doesn't mean that content of the files is in plain sight and open to indiscriminate search.
http://www.udayton.edu/news/nr/032901b.html

And from AllLaw.com:
While searching your home, an officer can seize evidence of any crime, such as stolen property or drugs, that is in plain sight.
http://www.alllaw.com/topics/criminal/C ... opic1m.asp

Okay...enough references for now...

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