Publicola

Continue the discussion with Spoons concerning the reversal of the 9th Circuit's decision on waiting times for forced entry when serving a warrant by SCOTUS:

"Your response basically makes three arguments, as I see it. Two of them, I submit, were not relevant in this case. First of all, you object that the warrant in this case was based on an anonymous tip. To my understanding, this was not an issue in this case, and the Defendant was not arguing that the warrant was not supported by probable cause. Correct me if I'm mistaken on that. In any event, obtaining a warrant is not quite as simple as you suppose. When police go before a judge, they have explain in detail, under oath, the nature the facts which they claim give them probable cause. This is what the Fourth Amendment expressly requires. In most cases, an anonymous tip, without more, will not be sufficient to get a warrant. If, on the other hand, the police get information from an informant who has proven reliable in the past, or who is in a position to have specialized knowledge, this will be more persuasive to a judge, and may lead to the issuance of a warrant. In any event, this is the same sort of evidence that has always supported warrants -- going back as long as we've had a Fourth Amendment.

Your second argument is that the Feds don't have the power to make drug posession illegal. That's a more interesting argument, theoretically, but it was NOT an argument at issue in this case. This was a case about execution of search warrants. If you object to all drug prosecutions generally, that's fine. However, given the fact that the Supreme Court is not going to agree with you on that structural question (which the defendant didn't raise and which COULD NOT therefore be addressed by the Court), I think we still want to address the general warrants question honestly, and to create a rule that can apply in all sorts of cases.

So that brings me to the third issue; namely, the length of the wait. You propose:

'Now there are situations where cops busting into someone's house would be acceptable, but they'd be limited to demonstrating a serious & imminent danger to someone's life & limb if they didn't do it. Certain hostage/kidnapping scenarios come to mind, but little else.'

'What I would prefer is that except in those situations where life & limb are threatened by not acting, that cops simply not enter a person’s home without permission irregardless of any warrant. They shouldn't have merely increased their wait time; they should have simply not entered the home until permission was obtained.'

That's a completely unworkable rule. More importantly, it's never been the law in this country. It's not what the Fourth Amendment says, nor what the framers intended. We rightly pillory liberals for making up new rights in the Constitution -- we shouldn't get into the business ourselves. The rule you suggest would cripple legitimate law enforcement. Not only drug crimes, but many other crimes that you don't have a problem with, would become difficult or impossible to prosecute, as long as the criminal worked out of the home. Simply keep the shades drawn, and destroy all the evidence when the cops come around and announce themselves (as the Court has said they must do). Better yet, if you're out of the house and learn that police have been by, simply don't go home. Hit the road, and the cops will never be able to get in.

I find it odd, too, that you object to the police entering your home -- with a warrant -- when the suspect is not home. What about when the suspect IS at home, but refuses to open the door? Is that entry okay? If so, why?

You also misunderstand the Castle Doctrine. That doctrine never had anything to do with a homeowner's right to disobey a lawful warrant. Indeed, a warrant from the King would always permit the King's men to enter anywhere in the realm (for the past 500 years or more!).

In short, my objection to your proposed rule are twofold. One, the rule you propose is utterly unworkable, and would devestate law enforcement -- even with respect to crimes that you don't disagree with. Second, and more importantly, the rule you propose is rooted nowhere in the Constitution (or even in Common Law)."

To address the first point made by Spoons, anonimous tips are a lousy basis for a warrant. Even disregarding that it allows for a flagrant abuse (i.e. making up the informant to secure a warrant or paying an informant to "inform" to base the warrant on) it offers nothing more than heresay as a basis for deprivation of a Right. In a court of law assuming Spoons & myself had equal standing (i.e. clean records, "respectable" backgrounds, etc...) he could testify that I had proscribed drugs or guns & it shoudl have no bearing, as it would be his word against mine with no proof to back it up. It may sway a jury but objectively it should have no bearing on any matters. Further I suspect that most anonymous tipsters are of less than upstanding background themselves. Hence their credibility is somewhat suspect which further discredits them in a peron's word against another person's word context. & I would remind Spoons that our favorite gun control org, the BATF, uses "informants frequently. Typically they threaten to bust a gun owner for something & offer him the chance to rat out someone else in exchange for leniency or immunity.

But here's another thing that must be considered: revenge on the part of the tipster as a motive. Say Spoons & I are at a bar & both trying to attract the same girl. For some reason she prefers me over him (i.e. she's had a drink or twelve on an empty stomach) & Spoons gets ticked off. So he calls the local PD & gives an anonymous tip that I have a machine gun & am selling coke. Now suppose the local cops have read my blog & are less then happy with my rants about the inappropriate actions that they took in a matter. They take this anonymous tip to the judge & get a warrant based on it & the judge's deference to them. So the cops come a knocking & we have at minimum a real tense situation. All because of a desire for revenge. Yes, it's a straw man but one that is probably more accurate than any of us would like to believe.

So despite anonymous tipsters being an old & accepted method of basing warrants I contend that it's flawed in many respects & shoudl be discontinued.

As to the argument that the Feds lack authority to make drugs illegal, we probably both have heard more sides of this issue than we can remember. But to sum it up, I see nothing in the constitution that allows the Feds to make any drugs illegal. States may be a bit different, but the Feds simply lack the authority.

Now as to the irrelevance of thse two points, I disagree. A court should look at all aspects of the case, not just those whicht he lawyers bring up. If a person is fighting a conviction for carying a concealed weapon & his attorney is basing his defense on some regulatory provision that allows such in one's car, that should not disuade the judge or jury from examining the question of whether or not the state has authority to prohibit or regulate the carrying of weapons at all. In fact courts should first look at a law & decide whether or not it is indeed constitutional before even considering other matters. So as you might imagine I am no fan of the presumption of constitutionality doctrine that has misled the courts for the last several decades.

The courts simply should have looked at these issues regardless of counsel bringing them up or not.

Now as to the third point Spoons addressed concerning my proposal, I do not see it as unworkable or as crippling law enforcement. What I see it as doing is perhaps inconveninecing law enforcement, but to the benefit of law enforcement & the people.

Under my program cops would still be able to break down doors & dress up in their space ninja outfits, but only when doing so would attempt to save life. This business about busting down someone's door for suspicion of possessing an illegal substance or object would be eliminated. I do not see it as hampering legitimate law enforcement efforts. If you accept gun control & drug prohibition as acceptable then officers could still enforce those laws. They just would not be able to bust into someone's home to do it, unless said person was taking potshots at passers-by out of his window, or he was holding someone against their will.

Now I will grant you this: my idea would devestate law enforcement as we know it; it would strip away a lot of power from the government to enforce its laws. But it would do so to the benefit, not the detriment of the people. In short it would only be damaging to the system as it is now, not the system as it should be.

As to it creating new law &/or Rights, I don't see it as that. I see it as merely enforcing the Rights of the people as they should be enforced. Quite simple the idea of Federal government agents, or local agents acting on behalf of the Feds to enforce Federal law, was not seen as something essential to daily operations of the federal government. In short those accussed of counterfeiting & other legitimate federal crimes were to be the only ones subject to Federal search warrants. & I doubt it was seen as something that would or should happen with any frequency. Moreover I doubt that a statement from someone whose intentions may be suspect would have been viewed as a legitimate exception to the Fourth amendment when it was penned. Keep in mind that in 1791, the Feds were suppossed to have limited powers & a limited number of agents in its employ. States had a little more discretion but still there weren't even any organized police forces - at least not as we know them today.

I really do believe that any signer of the respective constitutions - State or Federal - would have serious issues with the way the courts have interpreted the Fourth amendment as it pertains to the granting of warrants & forced entry into a person's home just as much as they'd not be happy with the courts treatment of the Right to Arms provisions.

& if Spoons is saying that the Castle Doctrine was irrelevant if the King signed a piece of paper saying it was, then I think that would do more to support my point rather than refute it.

The idea that a person's home is off limits to the government embodies the Castle Doctrine. But saying that a King could merely sign a piece of paper & the sanctity of the home would be forfeit is to essentially make the Castle Doctrine useless. Now I know that this was the case in England - the King most certainly could make exceptions at whim to the Castle Doctrine, but this does not justify its continuance today in the form of court issued search warrants.

The Fourth amendment sought to address this by the use of certain words, such as unreasonable & probable cause.

Here's the Fourth amendment in it's entirety:

"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."

Now as to the first part, essentially what Spoons & I are arguing is what constitutes unreasonable. I feel that busting in someone's door for a non-life threteaning reason is unreasonable. Spoons does not view it in this light.

As for the probable cause, again we disagree. I do not feel the word of one other person constitutes probable cause. Spoons sees it as an acceptable way to enforce laws that he fears would be unenforcable otherwise.

Further I believe that courts have used too little discretion in the issuance of warrants, especially the no-knock variety, while Spoons feels that adequate procedural safeguards are in place.

These three things in esence sum up the disagreement that Spoons & I have. If time permits I'll attempt to expand further on these (but as y'all may have noticed, time hasn't permitted much blogging as of late).

But in the meantime check out the comments in this post as there's some decent discussion of this issue going on.