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Illegal search?

xd shooter

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Oct 31, 2010
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333
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usa
I might suggest, Papabear, that IF you are "illegally" searched, you then have grounds for a civil rights suit against the Officer PERSONALLY, For reasons that the search WAS Illegal, and against your rights as spelled out in our Constitution.

What you say may be true, that cops CAN, and DO quite often, search someone without cause, without a warrant, and mostly get away with it. That does not make it LEGAL.

Many people Speed, don't wear their seatbelt, etc, etc, etc. And mostly get away with it. Doesn't make it legal.

If Officers were held more accountable for their actions in these cases, then maybe these illegal searches would be curtailed a bit.
 

Citizen

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SNIP What you say may be true, that cops CAN, and DO quite often, search someone without cause, without a warrant, and mostly get away with it. That does not make it LEGAL.

If Officers were held more accountable for their actions in these cases, then maybe these illegal searches would be curtailed a bit.

One thing that too often gets cops off the hook is something called the Good Faith Exception (GFE). Google or wiki it for an overview.

John W. Hall at Fourth Amendment dot com describes the GFE as meaning "close enough for government work." Mr. Hall's website is a wealth of information on the Fourth Amendment. Its a great blog. http://www.fourthamendment.com/blog/
 

Freedom1Man

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One thing that too often gets cops off the hook is something called the Good Faith Exception (GFE). Google or wiki it for an overview.

John W. Hall at Fourth Amendment dot com describes the GFE as meaning "close enough for government work." Mr. Hall's website is a wealth of information on the Fourth Amendment. Its a great blog. http://www.fourthamendment.com/blog/

Amendment 4
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.


The probable cause is needed to get a warrant. The warrant is needed to do a search.

The British officers knew that they needed a warrant to search a home, person, etc so they would write a warrant up right then and there. A police officer is this day and age still needs a warrant, per the constitution, but the courts have undermined the 4th amendment so badly that judges allow searches without a warrant and they issue warrants without an Oath of affirmation then the warrants are often worded too broadly. So the courts have been making unconstitutional ruling the whole time. Yes, even a "Terry stop" is unconstitutional as it is a search without a warrant. I don't care what a bunch of criminals in black robes claim.

:Describe who/what you are looking for.
:I am looking for a book.
:Describe the book.
:It is a hard back copy of the terrorist how to manual.
:Why do you need to find this book?
:It has instructions on how to be a terrorist....
This goes on and should be denied a warrant but that is the idea.

Here is how it goes now.
:I want to arrest him.
:Why?
:I think he's a bad guy.
:Here is a warrant for any bad guy.
:Thanks Judge, what was our tee off time tomorrow anyhow?

Sick.
 
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Citizen

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SNIP Here is how it goes now.
:I want to arrest him.
:Why?
:I think he's a bad guy.
:Here is a warrant for any bad guy.
:Thanks Judge, what was our tee off time tomorrow anyhow?

Sick.

In order to avoid sounding too outlandish, you'll want to read up a bit. You're on the right track, you just way oversimplified and generalized it.

The good faith exception (GFE) is an exception to the exclusionary rule--the rule whereby improperly obtained evidence is excluded at trial. For example, lets say a search warrant affidavit had a little too much conjecture, or gave facts amounting to probable cause to search for certain things, but left out facts amounting to probable cause for something else being searched for. And, the cop relied on the warrant in good faith. Then a court might apply the GFE to allow the evidence seized in connection with the defective parts of the warrant to stand. See US vs Leon, 1984 http://www.law.cornell.edu/supct/html/historics/USSC_CR_0468_0897_ZS.html

There are numerous GFE cases now. Rarely have I read about a warrant that was as flimsy as the example you give above. You're credibility will benefit if you take a moment to fill in the gaps between the extremes, rather than write the extreme and present it as the general occurrence.
 

Freedom1Man

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Messages
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Greater Eastside Washington
In order to avoid sounding too outlandish, you'll want to read up a bit. You're on the right track, you just way oversimplified and generalized it.

The good faith exception (GFE) is an exception to the exclusionary rule--the rule whereby improperly obtained evidence is excluded at trial. For example, lets say a search warrant affidavit had a little too much conjecture, or gave facts amounting to probable cause to search for certain things, but left out facts amounting to probable cause for something else being searched for. And, the cop relied on the warrant in good faith. Then a court might apply the GFE to allow the evidence seized in connection with the defective parts of the warrant to stand. See US vs Leon, 1984 http://www.law.cornell.edu/supct/html/historics/USSC_CR_0468_0897_ZS.html

There are numerous GFE cases now. Rarely have I read about a warrant that was as flimsy as the example you give above. You're credibility will benefit if you take a moment to fill in the gaps between the extremes, rather than write the extreme and present it as the general occurrence.

While I realize it's not THAT simple. It might as well be that simple if they are allowed to do searches without warrants in the first place.
Same with arrests.
 

skidmark

Campaign Veteran
Joined
Jan 15, 2007
Messages
10,444
Location
Valhalla
As strange as it may sound, I may have some "expertise" in this area.:eek:

What the government agents are doing at transportation sites is not a search, as that word is defined by the courts under the 4th Amendment. As has been noted by just about everybody they would need either a warrant or consent to perform a search (with some very limited exceptions generally based on exigent circumstances).

What you are being subjected to is an inspection - it just looks like a search, walks like a search, and quacks like a search. But it absotively, posilutely is not a search.

What differentiates an inspection from a search is, as far as I can tell, that when they inspect your stuff they are only looking at the first layer in from the outer container. If there are no tell-tale clues, indicators, hints or suggestions that whatever it is they are afraid you will get past them is located in a layer further down, they will let you go. (Usually.) If they say they have reason to believe something terrible that they are trying to prevent from going past Point A is hiding underneath that top layer, they will detain you under suspicion of trying to get something terrible that they are trying to prevent from going past Point A past said Point A. While they are detaining you they will read you amusing stories, provide you with snacks and drinks, offer you a manicure, and go seek a warrant to actually search you and your possessions. (OK, so I made up the first three things.)

Of course, you always have the option to decline to be inspected, in which case you will be denied permission to proceed to Point A and from there use the transportation system you thought you wanted to use. Or at least that was what I was told by the [strike]goon in the jackboots[/strike] stalwart guardian of safe ferrying.

And at this point I'd like to offer a HINT[SUP](c)[/SUP] - if you have any complaints about the conduct of the [strike]goon in the jackboots[/strike] stalwart guardian of safe ferrying, save them for later and submit them in writing. Attempting to address your concerns on the spot may prove hazardous in several ways.

stay safe.
 

Citizen

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While I realize it's not THAT simple. It might as well be that simple if they are allowed to do searches without warrants in the first place.
Same with arrests
.

There is a reason the Fourth Amendment protects against unreasonable searches and seizures. There are times when it just does not make sense to require a warrant. SCOTUS's way of phrasing that was to say in so many words that searches or seizures without a warrant were presumptively unreasonable unless done under a recognized exception to the warrant clause.

For example, searches incident to arrest. Are you really going to say that a deputy who arrests a bank robber in the middle of Nowhere, Kansas, should not be allowed to search the robber for weapons before putting him in the car and carrying him to jail?

Or, that a police officer cannot arrest a felon on the spot when he witnesses the felony? He's supposed to let the guy go while getting a warrant for an unnamed individual for which he has only a physical description?

There are a number of entirely reasonable exceptions to the warrant clause. I do not agree with all of them; but some of them make total sense.

My objections are more in the area of how the courts bend and twist recognized exceptions to fit the circumstances of the case in front of them, broadening government power rather than limiting it.

The Good Faith Exception is one example. Part of the court's specious reasoning is that it will not limit police misconduct to exclude evidence obtained because a magistrate approved a defective warrant. And, that police have to be able to rely on magistrates. Yeah, right. Nice sleight of hand. Who said police were the only ones who needed limiting? Who said magistrates wouldn't become a lot more careful if their warrants were criticized? And, that police wouldn't become a lot more careful in reviewing their warrant applications and double checking their warrants if they knew a magistrate who screwed it up might ruin their case? And, best of all, who said the people should not be well protected? Nobody. It would have been just as easy for the courts to exclude evidence arising from a magistrate's mistakes or misconduct as a police officer's.

A recent SCOTUS case ends up with a similar result--weakening protections. I forget the case name, but the gist of Scalia's reasoning was that in that case, excluding evidence would not limit police misconduct, so the evidence should be allowed. More sleight of hand. He seems to have forgotten that it would create care and thoroughness in the direction of protecting the innocent.

According to Dr. Roger Roots in an essay about whether police are constitutional, there was a time in this country where the searcher and magistrate were liable for double and even triple damages for a search based on less than probable cause. Boy, I bet that would cut down on errors, misconduct, and testing the limits real quick.

With your passion, Freedom, you can turn into a first class critic of 4A abuses by the courts. Just take the time to learn more about how the dysfunctional system works to protect government at the expense of the rest of us. Then you will be in a position to persuade people.
 
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papa bear

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Joined
Jul 25, 2010
Messages
2,222
Location
mayberry, nc
Do you have a cite that they can "legally" search without a warrant, without consent, without exigent circumstances, or other reasonable circumstances? If the evidence is thrown out it is because the evidence was illegally obtained.

i didn't want to take the time to search it. i will say the next time a LEO want to search something of your you push him and say "he!! no and see where that gets you. the leo will never be charged with illegaly obtaining contraband. one example is; man has car illegally searched turns up a pound of weed. during the court hearing the evidence of the weed is thrown out (of course it has been destroyed), but the officer has seen a pound of weed in the car, testifies on that. man charged with possession and distributing

I might suggest, Papabear, that IF you are "illegally" searched, you then have grounds for a civil rights suit against the Officer PERSONALLY, For reasons that the search WAS Illegal, and against your rights as spelled out in our Constitution.

What you say may be true, that cops CAN, and DO quite often, search someone without cause, without a warrant, and mostly get away with it. That does not make it LEGAL.

Many people Speed, don't wear their seatbelt, etc, etc, etc. And mostly get away with it. Doesn't make it legal.

If Officers were held more accountable for their actions in these cases, then maybe these illegal searches would be curtailed a bit.

right, illegal search. what you are talking about is after the fact. you still can not stop the search and they still could use anything they find against you
 

MKEgal

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Joined
Jan 8, 2010
Messages
4,383
Location
in front of my computer, WI
papa bear said:
i didn't want to take the time to search it.
It's one of the forum rules. Cite to authority.
There have been times I didn't have time right as I was posting to find a cite, or couldn't remember where I'd found something, but I made a note of such in my post & came back & fixed it later.

the next time a LEO want to search something of your you push him and say "he!! no and see where that gets you
I believe this would qualify as a straw man argument - make up something that your opponent didn't say, then attack it.
You don't need to (and should not) physically assault an officer in order to assert your right to be free from unreasonable searches & seizures. You don't even need to swear at him.

the leo will never be charged with illegaly obtaining contraband
S/he can be charged with violating your civil rights (IIRC, that's 42USC1983), and although the contraband couldn't be used as evidence, it would be taken & destroyed (as you pointed out).

man has car illegally searched turns up a pound of weed. during the court hearing the evidence of the weed is thrown out (of course it has been destroyed), but the officer has seen a pound of weed in the car, testifies on that. man charged with possession and distributing
you still can not stop the search and they still could use anything they find against you
I think you're wrong.
If the drugs (in whatever their container was... baggie?) were the only evidence of his possession, and the search was illegal, they couldn't be used against him. Not by showing pictures, not by showing the drugs themselves, not by testimony of the officer who did the illegal search...
Now, you're right in that you're unlikely to stop the search at the time it's happening. [DAMHIK]
 

OC for ME

Regular Member
Joined
Jan 6, 2010
Messages
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White Oak Plantation
Typically the tax payer is paying for the transgressions of the "servants".

If civil penalties were a effective remedy to mitigate thug cop behavior civil suits would be few and far between. Sadly they are frequent and wide spread.

Only criminal sanctions of the 1 year or longer and hefty fines $100,000 or more to be paid out of the department's operating budget only, will change thug cop behavior and his thug department behavior.

Then civil penalties to be paid to the wronged citizen of the seven digit kind.

.....would be nice anyway.
 

Freedom1Man

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Messages
4,462
Location
Greater Eastside Washington
With your passion, Freedom, you can turn into a first class critic of 4A abuses by the courts. Just take the time to learn more about how the dysfunctional system works to protect government at the expense of the rest of us. Then you will be in a position to persuade people.

You a lawyer?

I just need some schooling on court procedure if you could recommend one.

That is where I am weak. I wish I had known about jury instruction for one.

The other thing that is corrupt is that the prosecutor can change/amend the charges and wait up until the day of trial to do so.
 

Citizen

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You a lawyer?

Do I need to be in order to be believeable enough that you would at least take the time to review my cites and do a little research? No, I wouldn't think so. You sure didn't get your existing perspective from a criminal defense attorney. He woulda told you about warrant exceptions and the reasonableness doctrine. Its a damn touchstone of 4A jurisprudence for pete's sake.

Look, this is not a big deal. Just man up and realize you spouted off a bit without knowing the bigger picture. So. Just learn a bit of the bigger picture so you can help the next guy. That's how we exchange knowledge around here. Somebody who knows tells the somebodies who don't.
 

Freedom1Man

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Do I need to be in order to be believeable enough that you would at least take the time to review my cites and do a little research? No, I wouldn't think so. You sure didn't get your existing perspective from a criminal defense attorney. He woulda told you about warrant exceptions and the reasonableness doctrine. Its a damn touchstone of 4A jurisprudence for pete's sake.

Look, this is not a big deal. Just man up and realize you spouted off a bit without knowing the bigger picture. So. Just learn a bit of the bigger picture so you can help the next guy. That's how we exchange knowledge around here. Somebody who knows tells the somebodies who don't.

Not getting up set at all sorry.
I was serious about if you knew some good classes is all.

All you had to say was no, but you know the law really well.
 

Citizen

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Not getting up set at all sorry.
I was serious about if you knew some good classes is all.

All you had to say was no, but you know the law really well.

Oh, I see. I apologize. I thought I was in an argument. Excuse me while I take a moment to try to hide my embarrassment.

No, I'm not a lawyer.

If you are looking for court procedure, I'm guessing you are interested for a real serious reason. I would suggest contacting a lawyer who practices law in the exact jurisdiction where you think you might need to know about procedure.

Also, your county may have a law library at the county seat.

Do you recall the movie, My Cousin Vinny? Remember when Vinny met Judge Chamberlain Haller. Judge Haller handed him a thick tome on trial procedure in Alabama. I wouldn't be surprised if all such books were as large--the West has had something on the order of 4000 years to develop its law.
 

Freedom1Man

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Greater Eastside Washington
Oh, I see. I apologize. I thought I was in an argument. Excuse me while I take a moment to try to hide my embarrassment.

No, I'm not a lawyer.

If you are looking for court procedure, I'm guessing you are interested for a real serious reason. I would suggest contacting a lawyer who practices law in the exact jurisdiction where you think you might need to know about procedure.

Also, your county may have a law library at the county seat.

Do you recall the movie, My Cousin Vinny? Remember when Vinny met Judge Chamberlain Haller. Judge Haller handed him a thick tome on trial procedure in Alabama. I wouldn't be surprised if all such books were as large--the West has had something on the order of 4000 years to develop its law.

Okay, thanks.

I am not always combative on here, although I can understand where it might seem like I am.

Thanks, I think I will borrow that Jusidictionary course a friend mentioned. Might be a good start.

I have people tell me that I should have been a lawyer and so, who knows it might be kinda fun to become one.
 
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