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Eroding the Bill of Rights Fourth Amendment

Brighan started this conversation

      The U.S. Constitution is a contract among citizens consenting to give our elected officials authority to protect our liberties. To erode the Fourth Amendment is wiping out the checks and balances that protect American citizens. I believe the Justice Department needed restraint long before the Patriot Act became law. The F.B.I. and other law enforcement agencies are nearly untouchable, but not in a glamorous “Elliot Ness” fashion. The Senate is tailoring the Constitution to suit the needs of law enforcement, which resembles the old Soviet-bloc ideologies. Therefore, conscientious citizens must be familiar with the legal limits of police authority when they conduct searches.
      The police can violate the suspect’s rights when minor offenses become blown out of context. Citizens notice this erosion when the police behave badly while conducting “incidental" warrantless searches. Now, the concern is about law enforcement issuing warrants without probable cause. After September 11, 2001, Americans can expect greater unwarranted intrusion into their privacy than ever before. From here, people should safeguard the--no warrants shall issue-- part of the Constitutions that guarantees liberties to its citizens. For example, the Minnesota Constitution gives its citizens additional privacy protection in automobiles and personal property.
       Ignorance of the law is no excuse when the police educate people with intensifying, intrusions into their personal property and home. The Fourth Amendment has drawn a firm line at the entrance to the house for warrantless police entries. The police cannot enter absent an emergency chase of a suspect, the suspect destroying property or evidence or endangering life.    An officer's entry into private places, private business property, hotel rooms, or homes, will form a Fourth Amendment search.   
       For the reasonableness of intrusions under the Fourth Amendment, the Court expressed a preference for searching under judicial issued warrants. In Katz v. United States, 389 U.S. 347, 357 (1967) the Constitution requires the deliberate, neutral judgment of an officer interposing on the citizens searches conducted without earlier approval by a judge or magistrate, are unreasonable under the Fourth Amendment-- subject to a few specifically settled and well-delineated exceptions.
      One exception was the Supreme Court’s rally against the exclusionary rule and reasonable suspicion laws. Recently the Court held that there is no "special need" for a warrantless search of a home for a person on probation.   The legality of these searches balances between the public interest and the individual’s privacy. The Court expanded the circumstances of reasonable suspicion to hold where people live can color innocent conduct with suspicion. People living near a border town or socio-economic strained neighborhoods can draw the officer’s suspicion to use the totality-of-the-circumstances present. 
       I will argue the new anticrime laws evade the Bill of Rights protections using the “good faith doctrine,” which Minnesota law does not permit law enforcement to use the good faith exception. The “good faith doctrine” is an exception to the exclusionary rule. Evidence recovered from unsupported facts under a “good faith” warrant is admissible if the police relied on a valid search warrant.   Law enforcement officers must show probable cause to the judge issuing the warrants. Probable cause is a reasonable belief of finding seizable items by balancing individual privacy against public policy.   Without the “plain view doctrine” or firsthand knowledge from informers, or another, is lacking facts for a warrant. Officers cannot excuse their behavior on the “good faith doctrine” for erasing their Fourth Amendment infringements.

      However, there is one exception to the good faith doctrine that people should be aware of is the "inevitable discovery doctrine." Inevitable discovery protects law enforcement from violating the good faith rule if they can show the confiscated evidence would have been found at a later time if they followed the proper procedure.

     The Supreme Court recognizes the individual’s consent to a search as one of the warrant requirement exceptions.   Police do not need probable cause or, articulable suspicion for searching the person or their belongings when they give consent to a search. Consenting is the product of a person's exercise of free will and often a common mistake. Police rely on the person’s fear and ignorance of their right to deny the search, limit the search, and withdraw their consent at any time, which Minnesota law mimics Matlock, 415 U.S. 164 (1974). The absence of suspicious criminal activity suppresses any evidence gained from circumstantial consent-to-search cases. Police entering by consent must prove the person consenting controls the property and the scope of the search performed.
       In assessing voluntariness, the courts look at the totality-of-circumstances surrounding the consent and examining the facts for pressure.   The courts will discount consent as voluntary when the police assert their official status of rights and the occupier yields.   Knowledge of the right to refuse consent is nonessential to voluntariness. Therefore, as a Fourth Amendment version of Miranda warnings the police do not need to tell the suspect of his or her rights before a search.   The latter action could lead a person to give consent to the police even though they ignored to follow criminal and civil procedures.  The Supreme Court holds consent as an unknowingly lawful waiver when the police use noncoercive deceptions for seeking consent. Getting consent by deception is a useful law enforcement tool for gathering facts when lacking probable cause. 
       However, some courts have requirements that officers must have reasonable suspicion of anyone engaging in criminal conduct before entering by deception.  Police officers using noncoercive deception must document the supporting factual circumstances of consent given, the area searched, and the technique used. The courts routinely accept deceptive techniques used by officers to gain consent, which any evidence gained is admissible.   On the other hand, consent gotten by misleading information voids the search,  and any infringements by police asserting a warrantless authority considers evidence inadmissible.   Consent to a search is moot when the police are aware of recoverable contraband or evidence of a crime.
      The “plain view doctrine” rule seizes objects falling within the officer’s physical senses when the officer has the legal right to be there. Limiting the “plain view doctrine,” the officers must believe that those items detected are contraband before seizing them. For example, seizing evidence from a protective sweep of a home or viewing contraband in the car. If the officer needs a warrant to search and seize the legitimate observation, it will provide grounds therefore.   Raising the officer’s senses with developing technology causes protests against unwarranted intrusions by infrared and contraband detection sensors. For example, some law enforcement agencies are using the P.A.S. III “Sniffer,” (Passive Alcohol Sensor), which looks like a flashlight and detects alcohol in the environmental air near the suspect. Therefore, the electronic “Sniffer” detecting alcohol allows the Officer to gain evidence under the "plain view doctrine.” 
      The American Civil Liberties Union protested that police are using the “Sniffer” to invade people’s privacy and Fourth Amendment rights. Protesters say it violates the "plain sight doctrine" because the officers are not using their own senses--but an electronic device. The fear of detecting windshield fluid and other innocent items will spark a probable cause to a search. The A.C.L.U. reminds us the "sensory impressions” gained by an officer is admissible evidence. However, the ruling in United States v. Kyllo, 121 S.Ct. 2038 (2001) could overturn the use of the P.A.S. “Sniffer” and other detection devices.
       On June 11, 2001, Justice Scalia delivered the 5-4 reversed decision in Kyllo against the use of thermal imaging cameras intruding on people’s privacy. The Court allows warrantless infrared searches if the surveillance equipment was equally available to the public. Therefore, looking down from an airplane is permissible, but eavesdropping is not. 
        I believe the Supreme Court obviously dislikes the exclusionary rule and fears the Constitution will become a basis of tort liability under 42 U.S.C. § 1983 with matters best left to the states. Thus, evidence got through an illegal arrest, detainment, or confessions are inadmissible in the court of law. People need to learn how to protect themselves from coercive and overzealous law enforcement practices by using the exclusionary rule under the Fourth Amendment.
        As described by one historian, abuses and misuses of search warrants were prevalent. By 1914, in Weeks v. United States, the prosecutors excluded all evidence got by an officer violating the Fourth Amendment. In 1920, the Court extended this rule to exclude both; illegal evidence found, but also information gained from the illegal search. Then, in 1961 in Mapp v. Ohio, illegally gained evidence violates the Constitution and it is inadmissible in court. Thus, evidence got through an illegal arrest, detainment, or confessions are inadmissible in the court of law. The exclusionary rule under the Fourth Amendment protects individuals of coercive and overzealous practices of law enforcement agencies.
      Proposing the 14th Amend. Section 5 by Justices Souter and O’Connor in appointing a Federal Ombudsman for resolving citizen complaints of police infringement. The Ombudsman will exercise independent judicial powers restoring the Privileges and Immunities Clause back into the Constitutional intent.   Citizens are not pressuring the Judiciary and Congress for its accountability about ineffective sanctions against the law enforcement agencies. Preserving the American culture is falling into second place in the chase against the ghosts of the government. Until the section-5 provision of the Fourteenth Amendment clause passes, citizens must become aware and politically active. Americans must rely on the law readily available to them in the law libraries, personal experiences, and the Internet. The two web sites that I have found below, will provide police contact survival information for the individual.
 (1) “Your rights and know how to use them” – [a “mirror image” of information of the public policing the police]; and (2)  -- [A police contact survival guide]. 

In the spring of 2006, the US Supreme Court ruled that police do not need to perform the standard of "knock notice" when serving warrants. In other words, police can just break down your door and enter when serving warrants. God help us all!

Court says strip search of child illegal

By JESSE J. HOLLAND Associated Press Writer

WASHINGTON (AP) - The Supreme Court says a school's strip search of an Arizona teenage girl accused of having prescription-strength ibuprofen was illegal.

The court ruled on Thursday that school officials violated the law with their search of Savana Redding, who lives in Safford in rural eastern Arizona.

Redding was 13 when officials at Safford Middle School ordered her to remove her clothes and shake out her underwear because they were looking for pills. The district bans prescription and over-the-counter drugs and the school was acting on a tip from another student.

2009-06-25     14:24:49 GMT


Copyright 2009. The Associated Press All Rights Reserved.

  Payton v. New York, 445 U.S. 573, 590 (1980); Steagald v. United States, 451 U.S. 204, 212 (1981); Mincey v. Arizona, 437 U.S. 385 (1978).

  Minnesota v. Olsen, 110 S. Ct. 1687 (1990).

  United States v. Knights, 534 U.S. 112 (2001).

  United States v. Arvizu, 122 S. Ct. 744 (2002).

  United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405 (1984).

  Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223 (1964).

  United States v. Matlock, 415 U.S. 164 (1974).

  Bumper v. North Carolina, 391 U.S. 543 (1968); Johnson v. United States, 333 U.S. 10, 13 (1948).

  Amos v. United States, 255 U.S. 313 (1921); Johnson, 333 U.S. 10 (1948); Bumper, 391 U.S. 543 (1968).

  Schneckloth v. Bustamonte, 412 U.S. 218, 231-33 (1973).

  Amos, 255 U.S. 313 (1921); Zap v. United States, 328 U.S. 624 (1946); and Schneckloth, 412 U.S. 218 (1973).

  United States v. Maldonado Garcia, 23 C.M.R. 513 (1957) the U.S. District Court for Puerto Rico stated:
“[O]fficers cannot use a ruse to gain access unless they have more than conjecture that criminal activity is underway. To hold otherwise would be to give police a blanket license to enter homes randomly in the hope of uncovering incriminating evidence and information."  
  Lewis v. U.S., 385 U.S. 206, 87 S. Ct. 424, 17 L. Ed.2d 312 (1966).

  People v. Roth, 80 N.Y.2d 239 (1977); McCall v. People, 623 P.2d 397 (Colo. 1981).

  68 Am. Jur.2d Searches and Seizures § 145-- Consent Obtained Through Deception Or Trickery (May 2004).

  Maryland v. Buie, 494 U.S. 325 (1990).

  Join Together. Org., “New Gadget Sniffs Out Drunken Drivers.” 08/15/2000. Boston University of Public Health (1/22/05).

  The distinction that “off-the-wall observations” could be permissible while “through the wall” surveillance could be impermissible would lead to a trap as technology advances. The court held that any other approach, “[w]ould leave the homeowner at the mercy of advancing technology-including imaging technology that could discern all human activity in the home…where, as here, the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a ‘search’ and is presumptively unreasonable without a warrant.”

Click here to add your comment...
 in response to Sick & Tired...   

It is true that absolute power corrupts absolutely. You can buy your freedom if you could afford to defend yourself. However, legal aid has only so much money to defend the hundreds of people needing legal representation.

The freedoms and liberties our American forefathers dreamed about have long changed and reflected as distorted truth from a political fun house mirror.

This is why getting involved with your local politics is your last option.


Talk to Brighan
Sick & Tired

It is true that most citizens do not understand the rights that protect them. The "bending" of the law is out right illegal and violates the oath of office sworn to by law enforcement officers. Too many innocent people have been found guilty by a jury of their peers. For a very long time these innocent people have come from minority groups and those on the bottoms rungs of the social ladder. It is spreading into the middle class. These "defendants" are shocked when they are confronted law enforcement and charged with a crime. I have heard them say that they had no idea just how corrupt the "Justice System" really is. More and more people are forced to prove their innocense. Innocent until proven guilty is a wonderful concept developed by our forefathers. It is dead now.

Talk to Sick & Tired

Very educational and well done aidpage. Thanks!

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