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Thread: Interesting story for our Fourth Amendment experts

  1. #1
    Regular Member TFred's Avatar
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    Interesting story for our Fourth Amendment experts

    Wow... I'm not sure this is even legal...

    Woman surrenders Fourth Amendment rights

    TFred


    As part of her deal with the Culpeper County Commonwealth Attorney’s Office, Hovey–Smith will serve only three years of a 36-year sentence. However, she must be on good behavior for 30 years after her release, serve 10 years of supervised probation and complete 300 hours of community service.

    The court also ordered her to pay approximately $9,000 in restitution—plus interest—to her victims.

    Further, Hovey–Smith “has waived her Fourth Amendment rights to [refuse] searches and seizures of her person, residence or vehicle by any law-enforcement officer without the requirement of a search warrant,” Assistant Commonwealth’s Attorney Dale Durrer said.

  2. #2
    Regular Member TFred's Avatar
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    By the way, notice Culpeper County... what in the world is in the water out there!?

    TFred

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    I would argue that the right to be left alone cannot be waived. Makes it legally unenforceable.
    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

    If I am equal to another, how can I legitimately govern him without his express individual consent?

    There is no human being on earth I hate so much I would actually vote to inflict government upon him.

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    Activist Member Wolf_shadow's Avatar
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    Huh

    Did she have a lawyer? I can't believe they would agree to that.

    Like one of the com-mentors said what does this mean for visitors in her home or passengers in her car?
    Yes I carry a Bible and a Gun, your point.
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    From the referenced article:

    Culpeper County Commonwealth’s Attorney Megan Frederick said.... she required Hovey–Smith to waive her Fourth Amendment rights so “anytime we want to enter her home to check for stolen property, we will.”
    Yeah, that sounds like a grand idea.... NOT.

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    Accomplished Advocate peter nap's Avatar
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    I've seen that type of thing before and in reality, it's part of her probation.
    In some states people on parole and probation can be searched at will in the presence of a probation officer.

    She never really loses the right but if she chooses to use it, she will have to complete her sentence.

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    Regular Member Esanders2008's Avatar
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    In Chesapeake, that can also be a condition of probation. I suppose if you are caught doing something wrong and are given a choice of joining to jail or being bound by some crazy probation conditions, what are you really going to choose?
    ...To make my bullets go faster!

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    Campaign Veteran skidmark's Avatar
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    It's perfectly legal, as the judge (if he follows SOP set forth by the Va Supreme Court) went through a colloquy with her to ensure that she understood what her rights were, what she was agreeing to have happen if she waived those rights, and that she was freely waiving them without coersion. (Sorry, folks, but holding a prison sentence over her head if she does not chose to waive her rights is not coercion when the alternative in probation supervision. It's actually a boon granted by the state, as they fully intended to lock her away.)

    Any attorney will tell you what the options are and what you might reasonably expect by selecting one over another, but they are not (or should not) encourage you towards one option or the other. Your choice, all the way.

    She apparently believed they had enough to send her away, and chose the lesser punishment of being allowed to walk about within specified restrictions.

    For those that do not believe it, when you are faced with the prospect go ahead to trial and work through the appeals.

    stay safe.
    "He'll regret it to his dying day....if ever he lives that long."----The Quiet Man

    Because stupidity isn't a race, and everybody can win.

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    Regular Member TFred's Avatar
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    All very interesting. I wonder if this agreement "expires" at the end of her suspended sentence, or if she has waived this right for the rest of her life?

    TFred

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    Regular Member Esanders2008's Avatar
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    Interesting story for our Fourth Amendment experts

    It's also my understanding that the right is only waived during the duration of the probation.
    ...To make my bullets go faster!

  11. #11
    Regular Member Fallschirmjäger's Avatar
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    She agreed to it in exchange for knocking off about 90% of a prison sentence. The state did not have to Offer it to her, they could have just stuck her butt in the hoosegow for three years. She counted it as a kindness and so would I in the same situation. (Well, I'd count it as one if I was committed to going straight, that is. If I was going to continue to be a 'menace to society' I'd take the three years so I could get back to my business of rape, murder, arson, and rape.)

    Does anyone think she'd have the same 4th Amendment protections in prison that she's giving up on condition of probation? It's Very likely that she'll be subject to fewer intrusive searches during ten years of supervised probation (when probation officers have to drive out to her house) than when prison guards just have to walk down the corridor to her cell in the three years she would serve there.

    From the article, it looks like she was on probation for priors when she was convicted. Usually that's an automatic "we're dragging yo butt off to jail" right there.
    Last edited by Fallschirmjäger; 05-10-2013 at 01:09 AM.

  12. #12
    Regular Member TFred's Avatar
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    I understand the line of thinking. But where in the text of the Fourth Amendment does one infer that an individual has the ability or privilege to waive that right?

    Traffic law: When I am driving my car and I approach an intersection controlled by a traffic light, if "my" light is green, I have the right to proceed, and the cars that have a red are obligated to stop. The law does not afford me the ability to give up my-right-of-way to those other cars. Not a perfect analogy, but it makes the point. The rights guaranteed us by the Constitution don't seem to me to be something we should be able to trade away for some benefit, much less something that the government offers to "buy" from us as an enticement for a lesser penalty.

    It would be interesting to know if there is any precedent in the higher courts for this.

    TFred
    Last edited by TFred; 05-10-2013 at 01:26 AM. Reason: Clarify

  13. #13
    Regular Member Fallschirmjäger's Avatar
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    Quote Originally Posted by TFred View Post
    I understand the line of thinking. But where in the text of the Fourth Amendment does one infer that an individual has the ability or privilege to waive that right?
    Same place in the text that says you MUST exercise your right to free speech, Must own a firearm and Must always invoke 'the Fifth' no matter what questions are posed by the police.

    When the police ask, "Would you like to tell me where you were last night at ten o'clock?" you can always waive your Fifth Amendment rights and say, "The wife and I had reservations at Spago's, the head waiter knows us and will vouch for us, his number is 555-555-1212. Here, feel free to use my phone, press 63 for speeddial. And I can highly recommend the quail, it's to die for."

    You always have the right, the freedom, and the privilege to either invoke or not invoke your rights.
    Last edited by Fallschirmjäger; 05-10-2013 at 02:25 AM.

  14. #14
    Regular Member TFred's Avatar
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    Quote Originally Posted by Fallschirmjäger View Post
    Same place in the text that says you MUST exercise your right to free speech, Must own a firearm and Must always invoke 'the Fifth' no matter what questions are posed by the police.

    When the police ask, "Would you like to tell me where you were last night at ten o'clock?" you can always waive your Fifth Amendment rights and say, "The wife and I had reservations at Spago's, the head waiter knows us and will vouch for us, his number is 555-555-1212. Here, feel free to use my phone, press 63 for speeddial. And I can highly recommend the quail, it's to die for."

    You always have the right, the freedom, and the privilege to either invoke or not invoke your rights.
    You're trying to push the rope here.

    There is a big difference between choosing to answer questions, and choosing to no longer have the option to not answer questions.

    Choosing not to speak your mind, and choosing to not have the right to speak your mind.

    Etc.

    Significant difference.

    TFred

  15. #15
    Campaign Veteran skidmark's Avatar
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    The right exists. Period. Nothing can eliminate the existence of the right.

    What we should be discussing is a person who has chosen of their own free will not to exercise that right.

    Given the totality of your personal circumstances, would you stand up for the ability to exercise the right (once you completed your prison sentence) instead of waiving it for a defined period of time as one of the conditions for remaining out of prison?

    I have no relatives, and nobody is dependant on me for their support or care. (Yes, I am confirming what has always been suspected: I do live in a cave from which I emerge grouchy and grumpy.) I also have loyal minions who will gleefully ransack said cave and carry away all of my toys and some of the other accumulated detrius before the landlord comes to clean the place out and rent it to someone else. The factors I would consider in deciding how to act are going to be vastly different than those who have responsibilities to others.

    stay safe.
    "He'll regret it to his dying day....if ever he lives that long."----The Quiet Man

    Because stupidity isn't a race, and everybody can win.

    "No matter how much contempt you have for the media in all this, you don't have enough"
    ----Allahpundit

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