Well I see I have another fan,Craig,cheers.you can't please all of the people all of the time and I was attempting to support the original blog.What contribution to the subject did you make Craig?people like to critisize and pounce on anything they think is a stuff up but I atleast take the risk of having an opinion which is more than some are prepared to offer.

Michael wrote:

"...the President should not be able to enact laws as it would circumvent the balance of powers."

Absolutely. But the president has (and forgive me for the use of this buzz word) the bully pulpit from which he can shout about the injustice of the Kelo decision. This executive order isn't a yell, it's a mumble.

True, it's better than nothing. But it's barely better than nothing.

Robert,

You have to remember this was an Executive Order, therefore it does not legally bind on private citizens. I may stand corrected on the legal status of Executive Orders, but I believe they only bind the federal agency heads, unless the power is delegated to the President by Congress. Therefore, this would probably only apply to "takings" by federal agencies. The Supreme Court can also overturn these, as it has in the past.

At any rate, the President should not be able to enact laws as it would circumvent the balance of powers. Congress holds the power to create laws and giving that power to the President would send us down the slippery slope to dictatorship. So even if to undue Kelo, I would be against granting the President this power because it would eventually condemn all individual rights.

But regardless of the legal status, I, for one, applaud the President for this action because it is a step, albeit a small one. The wording is still highly flawed (enough "to drive a truck through" is right!!) and it does not undue what the Supreme Court has done.

However, as noted elsewhere, the wording of the "Takings Clause" is flawed itself and the abuse of eminent domain was happening well before Kelo when the government was condemning "blighted areas".

BUT perhaps there is a silver lining here. After the initial outrage to the Kelo on both the Right and the Left, the decision's assault on property rights has all but dwindled form the national consciouness, only to be replaced once again with complacency. In the now famous words of J. O'Connor in her dissent:

For who among us can say she already makes the most productive or attractive possible use of her property? The specter of condemnation hangs over all property. Nothing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory.

THIS needs to be in the public awareness and stay there until Kelo is overturned. Hopefully, actions like this will provide an impetus for Congress and the state legislatures to outlaw (with better wording!!) the taking of private property for the private benefit of others.

And if Congress or one of the state legislatures does make a strong movement towards protecting against eminent domain abuses, it may end getting challenged again at the Supreme Court in the not-so-distant future. Ironically, it may even be one of these quasi-governmental developers who challenges a revamped state statute. Unfortunately, the two new justices replaced two of the dissenters, but who knows what the makeup will be once it reaches Supreme Court again. I wouldn't be surprised either if one or more of the justices has a change of heart.

Although there may not be much support on the Left if the "taking" is used to build a museum detailing the "exploitation" of Western civilization.

Cheers,
Michael

I knew it was too good to be true.

If you can prove the "public good" will be served, the Government will grab your house and throw tax money at you as a sop. I bet I could make the case that the "public good" would be served by banning  distilleries, MacDonalds Restaurants and cigarette factories. Bah!

"And as for Suzanne Kelo getting her house back, I believe it's already been torn down."

&*%&^(@#!!!!

It's available right here, Robert. Enough holes in this one to drive a truck through, I'm afraid.

And as for Suzanne Kelo getting her house back, I believe it's already been torn down.

Hi Michael,

That's the first I've heard of that. When you get a second could you open a fresh thread with a link to that news report? If true, it is truely excellent news. Now if only Kelo can get her house back!!!

Cheers

Robert.

No, Rick, it doesn't.

I'd file that circumstance under a "clear & present danger" rule. The same as if the police were in pursuit of a robber and had to chase him through private property, or if they heard anguished cries coming from a house. Those are circumstances where the context admits a certain amount of latitude, and it's the common law that sorts it out.

It seems that the Hudson case does not fall into this category and that the police had an obligation to announce their presence & intent before executing the warrant. My question still stands: how long should the police wait after announcing their presence before they enter a property?

And, I'm still waiting for an answer to my questions about the wait period, which is the central matter in Hudson's petition *and* in the decision.

It's obviously in the too-hard basket.

Craig,

First you state I am debating "pure abstraction" by comparing my arguments with those of Christian Scholastics who debated how many angels can dance on the head of a pin. Next, its on the level of "Political Philosophy for Dummies" b/c of "get-out-of-jail-free card" comment. How is a boy to win with you?

You do recognize that the "get-out-of-jail-free card" comment was put in quotes because it is straight out of Scalia's opinion, right? I found it funny (and right on point) and I thought you would have recognized that--having read the opinion and all.

When I have taken the time to present long arguments, I don't appreciate the dismissive one-liner jabs in return. If you have some arguments to make, then step up and make them.

Michael

Scott,

I understand your desire to protect one's individual rights and I share that desire with you to the utmost degree. However, does it strike as proper that the cost of one's freedoms comes at the expense of justice? Scott, merely asserting that the exclusionary rule is what protects one's 4th Amendment rights does not make it so.

That is Scalia's point--that "releasing dangerous criminals" is a a "social cost" that does not need to be paid. If you want to argue persuasively, you need to argue against this. I would also recommend looking at the full opinion on LexisNexis or WestLaw and examining the case history Scalia provide--as it shows precisely why the court has eroded the rule. Quite validly, I might add.

And by what standard are you measuring that other remedies are inadequate or "the least bit effective"? How is it you know that further police education in case law and 4th Amendment protections, as well as criminal/civil rememdies for those who have their rights violated, does not serve to protect 4th Amendment rights? What do you think those expanding civil rights firms that Scalia mentions are doing? Drinking scotch? In fact, Scalia makes an effective argument against this in the opinion:

It seems to us not even true, as Hudson contends, that without suppression there will be no deterrence of knock-and-announce violations at all. Of course even if this assertion were accurate, it would not necessarily justify suppression. Assuming (as the assertion must) that civil suit is not an effective deterrent, one can think of many forms of police misconduct that are similarly "undeterred." When, for example, a confessed suspect in the killing of a police officer, arrested (along [*20] with incriminating evidence) in a lawful warranted search, is subjected to physical abuse at the station house, would it seriously be suggested that the evidence must be excluded, since that is the only "effective deterrent"? And what, other than civil suit, is the "effective deterrent" of police violation of an already-confessed suspect's Sixth Amendment rights by denying him prompt access to counsel? Many would regard these violated rights as more significant than the right not to be intruded upon in one's nightclothes -- and yet nothing but "ineffective" civil suit is available as a deterrent. And the police incentive for those violations is arguably greater than the incentive for disregarding the knock-and-announce rule.

This is an important point, nobody argues the "ineffectiveness" in other rights violations where civil/criminal remedies are the only "deterrent", so why the exception for the 4th Amendment here, Scott?

Furthermore, you need to argue against such arguments, as made by Caleb Nelson and others, that the rule does not, in fact, deter 4th Amendment abuses. His argument is that it actually discourages police from studying the case law and limits of 4th Amendment searches by adhering to a judicially-created rule. He also argues in some ways in provides incentives to unscrupulous police who use aspects of the exclusionary rule--such as the "good faith" exception--to actually conduct unreasonable searches. Therefore, you also need to argue against the ways the exclusionary rule impedes the 4th Amendment.

BTW, the exclusionary rule is NOT stated in the 4th Amendment, and where did the Framers state they had this in mind? If you think they did, then dig up something from Jefferson or Madison that supports this.

Lastly, your points about the proliferation of laws, intrusions using eminent domain, and the Patriot Act are off-point and are irrelevant to the arguments for the exclusionary rule here. Stay on-point. As an aside, President Bush on Friday signed an Executive Order prohibiting the eminent domain abuses set forth in Kelo. This is an outstanding development.

Regards,
Michael

Does a hostage situation require a warrant?

Yes, Ross: it's in Political Philosophy for Dummies. Right after the part about "get out of jail free" cards.

Rex, your post was quite condescendingly helpful, especially that title you chose. So helpful, in fact, that its like need never, ever, ever be seen again, by anyone, anywhere.

The Fourth Amendment has been amended?

Have I missed something?

Well done Scott,you have managed to fire up the people and opened up the debate.No one seems to have mentioned WHY the 4th amendment was amended.Terrorisim,these powers given to the police are all about trying to get even with the terrorists,and if a few american citizens get ruffled in the process then so be it.Scott,don't let them shake your belief in your self,it's called the tall poppy syndrome and I'v been a tall poppy all my life,I'm 6 ft4 my father was a teacher at my school and I'v been an atheist since I was 6,there are those in society who are clever enough to see whats wrong with other peoples efforts but these people are very reluctant to bare all and let you pick over their naked intellect,give them heaps mate,

You're the one who started shooting your mouth off about things in this country that you really don't know anything about, son. (That's southern for, "You don't have to act like an idiot, so stop it.") You have no room in the world to complain about "smarmy" when you had already taken the concept to the wall very early in this discussion.

Now: I'm a natural-born sucker for redemption. I believe you can get your feet under you on this matter, and I'd like to see it.

But your line that I quoted is strictly the truest thing you posted under this article. As for all the rest, you don't bloody know what you're talking about. That's all there is to it.

This thread is percolating nicely. I'm learning a lot and have already ordered three books on the recommendations of the participants. So it'd be really nice if for once the thread wasn't hijacked by the insult trolls. 

After reading for quite a while, I was finally driven to register and post. Succinctly.

Winefield wrote: "I don't know how things work in the USA."

That is the goddamned truth.

"And that's what I am trying to hammer home, Craig. That one can still maintain police respect for the 4th Amendment as well as recourse for people who have their rights violated WITHOUT this substantial cost of issuing "get-out-of-jail free cards"

But what counsels against the possibility of protecting 4th A freedoms and also ensuring police and prosecutor good conduct without the exclusion of illegally-obtained evidence is this:  nothing else has been shown the least bit effective in deterring bad police conduct. 

What many people of bygone generations understood, but what some folks on this list seem not to is this:  you NEVER side with the government over an individual and individual rights, when you have the 'balance' interests.  That's because with unfettered police and prosecution powers, every case is a guilty regardless of guilt, because that is their job, and they like to do it, and they are driven to 'win', like most people.

Every government has all the power it needs to put away an innocent person forever, no questions asked.  The United States is not designed to allow the government that much power.  BY DESIGN.  The presumption of innocence is part of the philosophy, but another part of it is that there is zero tolerance for police mistreatment of citizens, or there is supposed to be.  But all police departments employ the same officers on the same police force to 'investigate' police misconduct, and I think we all know where the complaints go, and it aint the Supreme Court. 

Taking away the State's toys (tools for conviction) when they do something wrong is the easiest, most efficient, most effective, means of ensuring compliance with the rules, and frankly, is also the best safeguard for indivdual rights with respect to the 4th Amendment.  It strikes at the precise motive that encourages police and prosecution misconduct in the first place:  the will to win at any cost, to get a conviction.  The 4th Amendment SHOULD be 'built out' as much as possible, or as much as is needed to make sure that police do not act with callous disregard for peoples' rights, which, I can tell you, happens here in Chicago all the time.  Being a police officer is a tough job, but it is supposed to be.  We aren't supposed to make it easier for the State to jail us.

Look at what is happening.  More and more things are being criminalized, so the number of otherwise law-abiding citizens who are technically guilty of a malum prohibitum crime rises.  Next, we allow the legislature to pass the Patriot Act, which, with a mere ALLEGATION that a suspect is a terrorist, means he may be jailed indefinitely without a charge or right to counsel.  It's a gulag law.  We have Supreme COurt eminent domain law, that let's the government take you land, not for some emergency purpose, but because the government weants to give the land to some other private individual because it will be better for the tax base of the government.  And finally, we have new case law coming down that makes it easier and easier for police to justifyably break into your house.

This is the {not so} slow march to a totalitarian state.  I swear, I think that Hitler's brain has been thawed out over at the White House and is the new policy adviser or something. 

But what counseleuidquid latine dictum sit, altum sonatur.k

Craig, this isn't Political Philosophy for Dummies, you know.

Drugs & guns are the specifics of the Hudson case but they are not the *principle* upon which it rests. You might as well suggest Hustler magazine & the local Nazi Party newsletter are subject to different interpretations of the First Amendment because they contain different subject matter.

Now, stop evading the question: regardless of the specifics, what is the proper time that police should wait before they execute a legal search?

I'm happy to entertain the thought that the context of the search may alter the wait period, but if that's your position, then you'll need to specify why.

Craig,

Yes, I know the facts of the case. Perhaps I didn't make my point clearly enough, but my point is that the rule applies to more than just drug cases, which is why I gave the other examples. Yours (and others) reads more like an argument against drug prosecution than it does an argument for the exclusionary rule.

Scalia goes through the history of the rule and it being eroded since Mapp. He gives the criticism that it "releases dangerous criminals" back onto the street, which I think is a devastating criticism. The problem is, he sticks to the balancing test whereby the "substantial social cost" is weighed against the "deterrent" effect of the exlusionary rule. He doesn't ask if the rule is appropriate in the first place and if it actually deters 4th Amendment violations. The Caleb article argues it doesn't via such things as the "good faith" exception.

And that's what I am trying to hammer home, Craig. That one can still maintain police respect for the 4th Amendment as well as recourse for people who have their rights violated WITHOUT this substantial cost of issuing "get-out-of-jail free cards".

Regards,
Michael

Craig,

You and the article you cited both reduce it to drug cases, which I think is playing on people's sympathies for prosecution of drug offenders.

Michael, when did I accomplish such "reducing?" What is Hudson ? It is in fact a drug case, for crying out loud. Always was. And facts are what they are. Unless I've been sorely misinformed, cocaine hydrochloride is an illegal drug. I didn't make it so, I didn't charge Hudson with possession, and I didn't decide his case. Not at trial, not at appeal, not at the US Supreme Court. But there we are. It's a friggin' drug case. Period. I didn't "reduce" anything to anything.

Ross has a potential point, yes, and I'll be getting to that shortly, but it's limited, as is yours: the US Supreme Court does not hear pure abstraction, ever. Had Hudson been flattened by a bus before his case made it to the Court, his case would never would have been heard by the Court, because the decision would have had no impact on Hudson himself, and the matter would have ended there.

We can, if agreed upon, argue pure abstraction until the Beatles get back together and angels tango upon the heads of pins. But to accuse me of "reducing" a drug case to what it was -- a drug case -- is ridiculous.

Craig,

You and the article you cited both reduce it to drug cases, which I think is playing on people's sympathies for prosecution of drug offenders. The article you cite mentions hostage situations, but then switches to drug cases and doesn't say what to do in the former case. What do you do, Craig?

For instance, say it was one of your loved ones, and the police could suprise the criminal by not knocking and announcing and save the hostage. What if, instead, the police knock and announce and the criminal is put on alert and the hostage ends up dead? Do you think in that case it is appropriate to "knock and announce"? Or what if the police are encountering a house full of armed thugs, should they announce their presence so that can be put in serious phsyical danger? Craig, what about these instances where it would be reasonable NOT to "knock and announce"? Afterall, drug cases are not all that exist.

As to your other point, in the Scalia's decision, his cite of Walker is not the only cite. He also cites some of the "numerous sources" available to officers for knowledge of case law and information on constitutional protections. He also cites the growing number of law firms that specialize in civil rights violations. To me, it was clear that his "evidence" was more substantial than Mr. Walker.

And this is besides the point anyway, Craig. Even if the police were not doing this, my point is that this is what should be done, as well as an increase in the recourse for citizens who do have their constitutional rights abused.

Furthermore, Craig, what is the recourse/justice for a murder victim or a rape victim or numerous other crime victims whereby key evidence is dismissed and they receive a "get-out-of-jail-free card" because the police did not adequately follow the rule?

Craig, do you understand the concerns Scalia raises in the decision about the "substanstial social costs" of "releasing dangerous criminals into society"? Do you see the problem with the courts issuing these "get-out-of-jail-free cards" because the "constable blundered? I think this is a real miscarriage of justice, don't you Craig?

BTW, Mr. Bidinotto edited a book called "Criminal Justice?: The Legal System v. Individual Responsibility" and inside is a good article on the exclusionary rule. Regardless of what you may think of Mr. Bidinotto, the article inside (by Caleb Nelson) is pretty good, although I am not sure it touches on all the counter arguments.

Regards,
Michael

C'mon, this debate is abstract, unrelated to the concrete that Hudson had drugs and a gun, which although they would be unregulated in a liberal society, are still a violation of the law as it stands.

Let's say it was a search related to a child kidnapping or an armed robbery. How long now? Or does the wait period change with the seriousness of the alleged crime? *Alleged*, mind you...

I would say, in the case of the Hudson search: forever.

I'm quite serious about this. Cocaine and a firearm? Please.

None of that goes to the specific petition to the court. Hudson asked for exclusion based upon a violation of his rights specific to the wait time.

So, what is a proper wait time, and why?

"And didn't I just get done arguing that in many ways the exclusionary rule conflicts with police properly understanding the limits of the 4th Amendment?"

Well, since you asked: no. You mentioned it, yes.

Scalia himself -- intelligent as he assuredly is -- is not to be trusted, either. Since you mentioned what Scalia wrote about police training and oversight, let's go ahead and check in with the scholar he cited on those very points:

Walker adds, "Scalia turned my research completely on its head. My point was that these reforms came about because the courts, specifically the Warren Court, forced the police to institute better procedures with judicial oversight. Scalia now wants to take that oversight away."

Walker says poltical leadership, internal procedures, media oversight and public pressure are all necessary to ensure civil liberties, but that judicial oversight is extremely important too, and that Scalia misused his scholarship to imply that Walker supports a diminishing role for the courts.

Whole thing here.

It's funny to hear Scalia being described as an "originalist." That generation of men who insisted on the Bill of Rights (including a Fourth Amendment) would have witnessed one "no-knock" raid before tarring and feathering every official involved.

Adam writes:

The exclusionary rule was all that stood between our essentially lawless police forces and any individual whom the police didn't like.

Oh really. Besides the 4th Amendment, you have heard of due process, no? And didn't I just get done arguing that in many ways the exclusionary rule conflicts with police properly understanding the limits of the 4th Amendment? It may even encourage those police, who are less fond of probable cause, to go snooping around and claim that they were acting in "good faith", i.e. reasonable reliance on the law.

Let me put it another way, Adam. Say the police were hot on the trail and about to conduct a search of a criminal who murdered one of your loved ones. Now, the police enter 5 seconds too soon, and the murder weapon that they find gets excluded, which leads to the murderer getting off. Do you have no problem with this because the exclusionary rule is keeping those "lawless police forces" in check?

In reality, it probably would not be excluded by inevitable discovery or something like that. And that was another one of my points--the judiciary keeps eroding this rule because of the "substantial societal costs". And letting criminals off to commit more crimes is a substantial cost to our freedom, a point you pretend doesn't exist at all. You do see this as a problem, right?

Considering most criminals are career criminals who go out and commit something like 15 crimes/year, don't you think its not such a hot idea to turn them loose "because the constable blundered" (in the words of J. Cardozo)?

From what Scalia wrote and what I have seen elsewhere, police departments are upping their education/training of officers on constitutional protections, such as the 4th Amendment. That, coupled with independent oversight, I think is the proper approach.

As to your claims about "lawless police forces" running about rampant, I've seen you make those same claims before and find them silly. Quite frankly, I think they belong on the conspiracy theorist thread.

If anything, criminals have a whole army of apologists--from sociologists to psychologists to criminologists--who want to throw up every roadblock to keep criminals being apprehended and punished. And they are a well-funded lobby by people like George Soros who scream the police are becoming like the military every time the police are allowed to do their jobs.

Michael

Michael - you write of "prosecutors who evaluate and prosecute the alleged individual rights infractions by the police." You wish. In this universe, at least in the United States, prosecutors know that their cases depend on police testimony, which can be easily slanted when a cop "gets back" at a prosecutor he dislikes. Therefore prosecutors never prosecute the police unless an innocent person gets dead, and seldom even then. The exclusionary rule was all that stood between our essentially lawless police forces and any individual whom the police didn't like. Now there is nothing.

I accept your apology.

But I do. I believe it to be sincere and I have no problem at all with this. Uh...some may have thought I got a bit hot myself.

Anyway, I'm glad to see this.

I have no idea what the 'thread view' is, but I accept that if Craig's post was indented, that is certainly some persuasive evidence.  I dont see any such indentation using my web browser.

So, sorry, Craig, for the invective hurled at you.  You didn't deserve it, and I apologize.

Since the invective was primarily (wrongly) directed toward Craig, I do not know if I should apologize to Ross and Robert, but I will anyway, since it was a pretty aggressive post.  So, apologies, gents.  Quidquid latine dictum sit, altum sonatur.k

"The point behind the exclusionary rule is that sanctions should exist which encourage police and prosecutors to observe the rules. The problem with this decision is that it will likely weaken those sanctions, and especially weaken the likelihood of victims obtaining recourse when things go wrong. The court's attitude seems to be that recourse is trivial. It's not trivial for those who have been wronged, and traditionally it's been difficult to obtain anyway."

BINGO!

uidquid latine dictum sit, altum sonatur.k

Robert, you write that in your opinion the exclusion of evidence is too high a price to pay for not knocking. What price, then, would you suggest is appropriate? It's worth asking because we're not just talking about "minor boo-boo's," as you put it, but destroyed lives and liberties.

For a start, here's the press release put out by Cato Institute's Radley Balko. This is a topic of interest to Balko, which he follows on his blog, which I also recommend reading. I urge you -- and you, too, Ross -- to follow the links. Note the part about dozens of deaths.

That's right: deaths. These are not minor boo-boo's. You might recall, also, that the justification for the Waco raid in 1993 was the delivery of a warrant. Punishment and other sanctions against such lawless police behavior is slight to nonexistent. Again, I urge you to read what Radley Balko has written on this. Compare it to the comments at the conservative blog, The Corner, where an approach based on individual rights barely comes up, and readers are encouraged to just trust the cops to respect our rights.

Scalia refers to remedies which are in increasingly short supply, and writes with thinly-veiled contempt for notions such as we are led to believe are "guaranteed" by the Fourth Amendment. The Hudson decision is a very, very bad precedent.

I understand Scott's and Craig's concerns about infringing on individual liberty, but I think they are misguided here. I am only a law student, so it would be interesting to see what somebody like Mr. Vallint (who has experience in prosecution) thinks of these topics.

At any rate, this is a problem that seemingly pits justice against individual rights. But I don't think there is a conflict here, as you have to keep in mind the individual rights of the victim, who deserves justice for having his rights violated. Also, considering most of the criminals are career criminals, letting the violater go free does not do much to protect the rights of the next victim. In fact, I have seen studies quoted that show many of these criminals soon end up right back in jail.

In the famous words of Justice Cardozo: "the criminal is to go free because the constable blundered". Obviously, there is a huge problem with justice when a large amount of criminals go free because they fail to adhere to these judicially created (not 4th Amendment) procedures.

(1) The knock and announce rule. In fact, many of these rules work against the 4th Amendment and work against police knowing the proper limits of the 4th Amendment (more below). Justice Scalia outlines some of the failures of "knock and announce". The standard of the 4th Amendment reads "probable cause" for warrants and that individual should not be subjected to "unreasonable searches and seizures".

However, one can easily see that it would be perfectly reasonable not to "knock and announce". What if the house/establishment was full of armed thugs, who if the police announced their presence, would suddenly be sitting ducks? The police must be given the powers to seek justice and protect rights. The element of surprise here would certainly be reasonable in them apprehending the criminals. Or what about cases where if they did "knock and announce", it would give ttime for the evidence to be destroyed?

It also introduces arbitrariness in the way such a rule is applied. How long do they have to wait? How many seconds? If it is 5 seconds too early, does that mean evidence of a clearly guilty criminal should be excluded? This is not much protection for the victim who had his rights violated.

Furthermore, this rule may even encourage less protection of 4th Amendment. For instance, say it was unreasonable for a search in the first place, yet if the police "knock and announce" and wait the proper time--they are fitting the procedural standard, but still violating the standard set forth in the 4th Amendment. Such officers may be insulated against improper 4th Amendment procedure violations because they followed the judicially created procedure.

(2) The exclusionary rule. Scott, and even others who disagree with him, speak of the importance of the exclusionary rule in the evidence obtained. I disagree with this and think the exclusionary rule should be abolished all together.

First of all, the 4th Amendment does NOT include this rule, it was also judicially created in the early 1900's. The Court has eroded this rule because of what they call the "substantial societal costs"; namely, letting guilty criminals go free to roam the streets and commit more crimes. That's why Scalia refers to it as "our last resort, not our first impulse"--as it should be.

It also works against the 4th Amendment in many ways. One of the ways is the "good faith" exception where an officer was acting on reasonable reliance of what he believed to be probable cause (even if the statute for probable cause was later found unconstitutional). I can see why they did this because the police need guidance and the ability to conduct searches where they believe there is a crime.

However, this encourages police, who may not have respect for the 4th Amendment, to snoop around and conduct unreasonable searches. They can simply claim they were acting in "good faith" when in fact their search wasn't reasonable at all. Also, they don't have to study the limits of the 4th Amendment if they can merely claim they were acting in "good faith".

Therefore, not only are criminals getting off scott-free, there are also good arguments that this creates less 4th Amendment protections.

(3) Alternatives to the exclusionary rule. It is right to be concerned about innocent people being harrassed by the police, but these rules give less guidance to the police and even inhibit the 4th Amendment. I think sticking with the standards set in the 4th Amendment is fine, the judiciary does not need to set up semi-arbitrary rules to further protect 4th Amendment rights.

So what is the recourse against those officers who do stray outside the 4th Amendment and other Constitutional protections? Others noted that there is civil and criminal charges that can be brought as well as police interdiscplinary measures.

However, on the latter, the best suggestion I heard is to put the discplinary measures outside the police department to an independent board. Often, the police like to "protect their own", so this makes sense. The independent board can have prosecutors who evaluate and prosecute the alleged individual rights infractions by the police, and the police can have legal council to defend themselves.

This seems like a better solution than letting criminals go free and putting arbitrary shackles on the police; and it allows for protection of the individual rights of the innocent.

Michael

"Now, normally, if you made it clear that, somehow, that post pertained to Ross or Robert's posts, but not to the original article,"

Craig hit the reply button under Ross' post, hence his reply is attached to Ross' and appears indented in the threaded view format.

The point behind the exclusionary rule is that sanctions should exist which encourage police and prosecutors to observe the rules. The problem with this decision is that it will likely weaken those sanctions, and especially weaken the likelihood of victims obtaining recourse when things go wrong. The court's attitude seems to be that recourse is trivial. It's not trivial for those who have been wronged, and traditionally it's been difficult to obtain anyway.

As for the barbecue, Robert: you're on your own. And welcome to the US.

If this:

"And you're wrong

What on earth does that decision, or the argument for that decision, or anything to do with the argument for that decision, have to do with protecting rights?

Anything? Anyone? Bueller?"

is not a response to the blog post, then I guess I need to figure out: (1) why it appeared as a comment to my blog post; and (2) why it certainly appears to be a DIRECT RESPONSE to the end of my blog post, where I wrote:

"Mediocre intellects with no regard for freedom are quickly eroding the cornerstones of liberty in this country." Or in a more general way, the entire blog post itself.

Now, normally, if you made it clear that, somehow, that post pertained to Ross or Robert's posts, but not to the original article, I would accept that and apologize for a misunderstanding.

Except that is, to me, pretty clearly not the case, on its face.

Even if that were the case, you post, is a snide, postmodern snigger.

So here's an apology for you: if I misunderstood your post, then maybe you need to learn to write more clearly, because my interpretation of what it responds to is the more reasonable.

You might also want to consider why I might feel enough passion to want to use the word "fuck" or "fucking" in my response, too. Or whether my entire post was in direct response to yours, which was clearly not the case.

I just do not understand where I was supposed to glean agreement from a brief, snide post.

As to my reading, reasoning, or other abilities, keep those ham-handed attempts at provocation to yourself. I'm not your friend, but I'm not your enemy, either.

"and perhaps Winefield and Elliot, these two New Zealanders not living in the States, aren't sufficiently aware of that, or of how local police in America these days are not being held accountable for these actions."

I've been in the States for a year and a half now, but I live and work in a sleepy little Kansas college town so I haven't encountered the sort of behaviour you allude to. I'd be interested in your counter-points as I'm planning on immigrating to the States on a permanent basis and I'm trying to learn as much about the USA as I can.

The States is a big country with a lot of history and it's a bit much to take in all at once, so you'll excuse me for not understanding every twist in the legal system as it currently presents itself.

Afterall, I've yet to decide which is better: Arthur Bryant's (of Kansas City) barbecued pork or the barbecued ribs prepared by the Texan lad who is married to a good friend of mine...

So now you are referring to evidence not presented in your initial post, expecting that everybody reading your post is as well versed in US constitutional law as you seem to be. And you wonder why people don't get your point?

Perhaps you should have read the title of my reply. In case you missed it in your haste to throw a hissy fit, I'll repeat it here: "Need more convincing." I then go on to outline ~why~ I need more convincing. You could have used your reply to expand and improve your initial argument, instead you spat the dummy.

And you are still spitting the dummy: "it is clear that you do not know how things work in the USA" and "... follows is really troubling to me, especially from an Objectivist"

So-fucking-what?

Either I'm wrong or I'm right. My ignorance of US Supreme Court rulings and whether or not I'm an objectivist has got nothing to do with the issue at hand, namely: why is this ruling the worst thing since the Jim Crow laws?

If I'm wrong, show me why. If you have a point Scott, stop acting like a git and make it. Shit or get off the pot. Ross and I have raised legitimate arguments based on the evidence presented in YOUR post.

If there is a problem here it is that you didn't make your case to start with. You are speaking to an internet forum you jerk, you aren't addressing a convention of US judicial experts. It isn't a given that we're well versed in the relevant case law. Thus, whinging about the fact I haven't read the rulings that you have (and didn't mention) isn't an argument, it's a waste of perfectly good electrons.

Craig, for my part, I can assure you that I am well aware that you disagreed with me. But I didn't reply to your post as their was nothing further to say that I hadn't already said in my original post on the other thread, as linked.

So, what's the argument? I'm ready to be educated as to how the recent decision on the wait period changes the situation re US law enforcement from what it was before the decision.

And just to be painfully clear, my salutation re being "Scott's Freedom-Loving Friend" is not styling, it's mild (obviously *too* mild) sarcasm.

Ross Elliot styles himself "Scott's Freedom-Loving Friend."

I do not.

Scott, your previous post addressing me was a fucking disgrace. Period. You owe me an apology. Period. Now, I grant that it takes a special kind of stupid to stand out on the internet, but you've managed to acquire it.

I'll put it in simple language, Scott; simple enough, I hope, that when this is read to you, you'll be able to grasp it. Perhaps not until the sixth or seventh reading, but then, hope springs eternal.

I was on your side, shithead.

Of course, your original post objecting to the Court's decision made ZERO mention of individual rights. I won't forget that. My post did, so perhaps that's what you objected to.

I also didn't blast Robert Winefield or Ross Elliot, either. I simply said, "You're wrong." Perhaps that's what you objected to, I don't know. I didn't have the time to tell them just why, in context, this decision was so important, and so wrong -- what with ambitious, out of control prosecutors (as Paul Craig Roberts has been arguing, with links I'd wanted to include) and the proliferation of SWAT teams serving routine warrants and murdering people (as Radley Balko has amply documented) -- and perhaps Winefield and Elliot, these two New Zealanders not living in the States, aren't sufficiently aware of that, or of how local police in America these days are not being held accountable for these actions.

Scott: You didn't mention any of that, either. None of it. You just whined about "knock and wait."

Now, Robert Winefield -- who has never met me in person -- somehow managed to grasp that I was disagreeing with him, and not with you. But that was beyond you, or beyond your reading service's ability to convey to you. And he challenged me to get back to him on just why I disagreed with him. Now that's fine, and that's fair, and he did it in a smart, witty manner.

Not good enough for you, I guess. Ignore those who disagree with you. Why not? Go for the guy who's publicly taken your side! Hell, yeah! For you, I'm "smug," and I'm a "totalitarian." Why: for agreeing with you?

Oh, and I don't mind pointing out: you never got back to Winefield and Elliot, either -- or to anyone else -- on just why this bad decision was, in context, such a bad decision. You never did. Now, I'm aware that it's the 21st century, and perhaps such things as letter-writing services no longer exist. I wouldn't know. I handle my own correspondence.

You see why I'm urging you, Scott, to learn to read? Do it, man. It's important, and it's really a whole lot better than relying on those reading services, which as you can now see will lead you astray, although I'll grant you, it takes a bit more effort. But at least you can recognize your enemies and those who disagree with you and those who have taken your side, and respond accordingly. And appropriately.

I hope none of the above was too complicated for you to grasp, Scott. If so, lemme see if I can condense it:

Your objection to Scalia's decision was weak and inadequate, because you provided no reasoning at all for your objection -- even though you were on the side of the angels on this one (and you are). You misread and inexcusably mischaracterized what I wrote, by attributing two other writers' objections to me -- and then called me names based on your own misattribution. Own up to that. You fucked up, you behaved poorly, and you owe me an apology.

First, re-read my post.  Barring evidence is becoming less and less common.  There is a Supreme Court case that allows for seizure of illegal items and their owner's prosecution even when there is a mistake in executing the warrant.  No, the police don't automatically get sued.  No, the evidence is not automatically barred.  That you think this happens explains your thinking on the issue, though.

Second,  YOU re-read the 4th Amendment.  Where does it say that your have no rights once a Judge signs a warrant? You wrote that "Privacy rights are waived AFTER the search warrant is issued."  Excpet the owner of the rights is not waiving them, and he is the only one who can waive them. The government is abridging them.  But even with a warrant, a citizen is entitled to be free from unreasonable search and seizure.

Third, it is clear that you do not know how things work in the USA.

Finally, that you answer my rhetorical question as follows is really troubling to me, especially from an Objectivist.

">You have no expectation of privacy, and no rights as long the GOV-ER-MINT has a search warrant, >right?

Correct."

Try not to forget where rights come from.

Scott, don't paint me as *defending* the power of the state.

You did read the decision, right?

Nowhere in the decision was it even suggested that leaping out of squad cars and hurling themselves at doors was a proper procedure for police officers to follow.

My commentary was based purely on the issue before the court: the length of time that it was deemed proper for a police officer with a warrant to wait before entering a property.

My question was: well, how long is it?

Robert is correct in that the safeguard is in the proper issuing of warrants, and futher, I certainly agree that the "rules of engagement" that then follow are important as well.

The police should wait before they enter a property, no argument from me. But the court has found time and again that just because a person's rights under the Fourth may have been violated, that does not *necessarily* mean any evidence gathered is fruit of a poisoned tree.

The decision also goes into detail about *why* knock-and-announce is important, re the dignity of the persons to be searched, the safety of all parties concerned, etc.

I don't think this decision does anything *for* rights, but neither do I think it does anything *against* them either.

Ross
Scott's Freedom-Loving Friend

>You're sitting at home, the cops make a mistake etc.

Any evidence recovered is immediately discarded at trial because the search was illegal (under the 4th amendement the scope of the search warrant is limited) - the search warrant was obtained under false pretenses. The police department is sued for damages and excessive force.

>or the Judge makes a mistake

Any evidence recovered is immediately discarded at trial because the search was illegal (under the 4th amendement the scope of the search warrant is limited) - the search warrant was obtained under false pretenses. The police department is sued for damages and excessive force.

>they bust the fuck into your house.  They dont knock, they bust the door down and have you face >down on the carpet, because hey, fuck it, they have a search warrant, right?

Any evidence recovered is immediately discarded at trial because the search was illegal (under the 4th amendement the scope of the search warrant is limited) - the search warrant was obtained under false pretenses. The police department is sued for damages and excessive force.

>You have no expectation of privacy, and no rights as long the GOV-ER-MINT has a search warrant, >right?

Correct.

This was the case before the decision too. If the search warrant stipulated that the house and contents could be searched then the house and ALL the contents could be searched. Privacy rights are waived AFTER the search warrant is issued.

Any fault or abrigment of liberty originates not at the police battering ram, but at the judges pen.

Your vitriol is misdirected. Read the 4th Amendement:

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 person or things to be seized.

If the government has PROBABLE CAUSE to enter your home they can do so, and with a search warrant obtained under probable cause they can search whatever the judge stipulates they may search.

So the issue IS NOT whether you have 10 or 20 seconds to put on your pants and answer the door.

It is whether the justice system has sufficient safe-guards on how search warrants are issued, and how the scope of said warrants may be restricted.

I don't know how things work in the USA. But in NZ, family court judges can issue protection orders, warrants for search and seizure of firearms etc. based on the most flimsy police testimony offered via a fax machine or telephone. The police need not even visit the judge in person.

"Your trust in authority apalls me."

I don't trust authority. I just prefer to attack a problem at the root not the leaf.

...I am rather sickened at the magnitude of what you are missing here.

Does a Judge-signed search warrant mean that the police may do as they will?

Evidently, this group believes so.

Can anyone who has commented on this blog post yet even conceive of the idea of a not-guilty person being searched?

You're sitting at home, the cops make a mistake, or the Judge makes a mistake, and rather than identify themselves, they bust the fuck into your house.  They dont knock, they bust the door down and have you face down on the carpet, because hey, fuck it, they have a search warrant, right?

You have no expectation of privacy, and no rights as long the GOV-ER-MINT has a search warrant, right?

Do you know who pays for the door?

Can anyone conceive of someone seeing the police in the window, and letting them in? 

Did you know that this happens sometimes?

Well, now it is going to happen less frequently. 

Now, let's also say that the cops are looking for stolen mechandise, and let's further say that you were smoking a joint in your house.  Not hurting anyone, smoking ajoint in the privacy of your own home.

Guess what, you dipshits, you're going to jail, because you just gave away your chance to get rid of it, EVEN THOUGH THAT IS NOT WHAT THE COPS WERE THERE FOR OR LOOKING FOR.

Did you know that there is a Supreme Court case that says, even if the cops break into a house per a search warrant, and they serve it on the wrong person at the wrong address, they can still bust the wrongfully-searched home owner for whatever they find by digging through his private stuff?

I guess that's ok, too?

Your trust in authority apalls me.

And your smug fucking attitude you can keep, too, Craig.

You REALLY can't understand why there needs to be limitations on a government's ability to search, or BUST DOWN YOUR FUCKING DOOR if it feels like?

You don't see an infringement of rights here?

Do you understand how strong the drive for a prosecution is in a career cop or prosecutor?  Do you think a fucking fine is going to stop overzealous assholes who do things like beat confessions our of suspects and try cases against people they know are innocent, just to get a conviction that's good for their career?

Now would be the time where, oh, I don't know, maybe Craig, says "give us some examples of these alleged things you say are common."

My response is: screw you, you totalitarian, and the horse you rode in.  Go search the internet.  And read the Ominous Parallels some time.

Robert Winefield queried, "How do we know that you aren't Phil Coates masquerading as Craig Ceely?"

It's quite easy, Robert. My je ne sais quads give me away every time.

How do we know that you aren't Phil Coates masquerading as Craig Ceely?

As I said, I'm not entirely sure what to make of this decision. It does remove a veil of protection that we previously enjoyed and that is a bad thing. But the veil was very thin and hardly protected anything at all from a policeman armed with a proper search warrant.

I'm also of the opinion that police-power should only be restrained by laws so transparent in their intent that even the dimmest policeman can comprehend their purpose. That way you increase the probability that PC Plod would actually follow the law.

As it stood the law seemed to impede the police from properly executing their duties: investigating crimes without getting shot full of holes and costing the taxpayer even more in hospital bills etc.

Feel free to correct any faulty thinking on my part. Just tell me straight! Forget that Socratic method nonsense. I haven't got 14 months to wade through swamp of verbiage (or verbage - if you are, in fact,  Phil Coates in disguise).

What on earth does that decision, or the argument for that decision, or anything to do with the argument for that decision, have to do with protecting rights?

Anything? Anyone? Bueller?

Well, I'm with Robert on this one.

And I did make comment on the same subject here.

You are going to have to do more to convince me that this is a grievous abridgement of my liberty.

(1) The homeowner's privacy rights (they can stop having sex or get dressed before polcie knock down their door).

Considering that a legal search warrant allows the police to search everything on the premises including home-made porn collections and panty-drawers, I don't really see how your right to privacy is preserved by a knock at the door and a 20 second wait.

And how effective is this "precaution" anyway? Did the constitution stipulate that the "knock" be audible throughout the house?  As I understand it, that 20 second wait time (15-20 seconds according to my information) was based on previous interpretations in previous Supreme court cases. What happens if you are in the back of a huge house and the doorway is a 30 second stroll away? Should the police take the size of the property into account? Isn't the 20 sec rule a trifle arbitrary?

(2) Property rights (the homeowners can voluntarily open the door and let them in, rather than paying for a new door and windows if the police barge in).

Again, search warrants allow the police to take and break property (within reason and if necessary) in order to find incriminating evidence hidden (for instance) under floor boards or in locked safes.

(3) And safety

IMHO, this is your strongest point. However, I would argue that the police have an equal right to safety. That is, why should they give a potential violent felon the chance to prepare themselves to resist the search by knocking and waiting 20 seconds?

I'm inclined to agree with Justice Scalia, that the exclusion of evidence is too high a price to pay for not knocking. Previous courts sort to use the exclusionary rule to punish police who didn't execute the searches properly.

I agree that a penalty should be exacted from the police if they conduct an improper search that abridges the 4th ammendment. But instead of ruining the criminal case when the police make a minor boo boo, what's wrong with punishing the commander fo the raid with some criminal charge or fine (plus compensation for damage or injury)?