Sunday, December 14, 2003

First let me address a comment left by Spoons. It was concerning the SCOTUS decision reversing the 9th Circuit's decision involving forcible entry in the execution of a search warrant.

"I disagree. I distrust the gumm'int as much as the next guy, but the criminal-friendly Ninth Circus was wrong, and the Supreme Court was right. This wasn't a warrantless search. The cops had evidence that this guy was a drug dealer, presented that evidence to a judge, and got a warrant -- just like the 4th Amendment requires. They went to his home, knocked on the door and said "Open up! Police!" They then waited for twenty seconds (which is an astonishingly long time -- count it out) for the drug dealer to answer the door. When he didn't, they broke in, found the evidence they expected to find, and arrested the guy.

What exactly is the problem here? What rule would you like to suggest? Should the police have to wait 60 seconds? Five minutes? Should they assume he's not home and come back later? These cops followed the law and the constitution, and did everything right. It turned out (possibly) that this guy may have been in the shower when police knocked. The police didn't know that, though. He could have been flushing the drugs down the toilet, loading his gun, or hiding under the bed. The cops didn't do a no-knock raid here. They knocked and waited.

One of the problems I have with my pro-gun brothers is that sometimes we allow our (proper) distrust of government authority to automatically oppose the government in all things. That's counterproductive. We WANT the government to be able to arrest criminals. Gun owners, more than most people, perhaps, are keenly aware that there are bad guys out there and that they need to be dealt with. While we know that we can't (and won't) depend on the cops exclusively, we ought to support what they're doing when they play by the rules. Here, the cops played it straight and arrested a drug dealer. Good for them. And good for the Supreme Court for smacking down the Ninth Circuit's attempt to let yet another criminal go free.

Oh, on an unrelated note, the Silviera petition advanced SIX different issues to the Supreme Court, not three."

I concede that Spoons is correct in that the Silveira case posed six questions, not three. I should have clarified that but the point I was making concerned Clayton Cramer's assessment of things & he used the three questions to make his point.

But with Spoons assertion that SCOTUS was correct in this instance I have to disagree.

First of all, the "evidence" that formed the basis for the warrant in question was the word of someone else. No photos, no signed statements, no tape recordings - just someone else telling a cop that this guy had drugs.

Many warrants are based on such "evidence" & are flawed because of it. You, me, anybody could walk into a police station & claim that another person had illegal drugs, or illegal weapons. If the cops were interested in that person to begin with, or if they were having a slow day, the statement you or I made would form the justification for a search warrant. It's an extremely low threshold to climb over & one that wouldn't objectionably pass constitutional muster - if the constitution were to be taken literally.

So Spoons could claim I had a machine gun, a silencer & a couple of pounds of illegally imported plants. As long as Spoons seemed credible (i.e. told them what they wanted to hear) & they were sufficiently interested in either me or the objects Spoons claimed I had in my possession, then they'd seek a warrant. Odds are they'd get it.

This process does not take into account the possibility that Spoons could be lying. As long as he doesn't make the lie too obvious he could claim I had anything plausible without much scrutiny. Granted, I doubt they'd take him seriously if he said I had a homemade nuke in my garage, especially if I didn't have a garage to begin with, but barring that they'd deem it probable cause if the object was more common, such as drugs or proscribed weaponry.

Now the officers did in fact find drugs in the defendant’s home. This does not establish the validity of using third party accounts to establish probable cause. With the complexity of the legal system as we know it, odds are if they searched 100% of the homes in America, in 80% they'd find something proscribed, such as a gun or drugs. So more or less they rolled the dice & came up lucky. That does not condone their actions unless you're a Jesuit (i.e. the ends justify the means).

So I submit that the process for obtaining the warrant was much less burdensome than intended.

Now as for the substance of the warrant itself, pardon me but I see nothing in the Constitution of the U.S. that authorizes the feds to prescribe or proscribe any substance. In short the law that made it a crime for this gentleman to have the drugs in the first place exceeds the Constitutional limits placed on government. That is not even entertaining the arguments that if it were constitutional to prohibit certain drugs that it would be a good policy decision.

So I submit that their warrant was baseless on its face.

Finally we come to the waiting period. The cops waited 20 seconds before they busted the door down. I have issues that they busted the door down at all. There was no danger to life or limb of anyone concerned. The only thing at risk was disposal of evidence of a victimless crime. This is not sufficient justification for breaking & entering.

Let's look at how things could have turned out for a moment:

Let's assume Spoons was ticked off at me because I claimed that my cat was more feline than his (hey - there have been arguments about more abstract things!). He goes down to the local PD & tells them I have drugs & a machine gun. He further tells them I showed the machine gun to them & he saw the selector switch while we were smoking a joint & that I bought the gun through profits made from selling pot. The cops haven't been thrilled about my anti-cop (rather pro-people) writings on this blog, so they immediately apply for a search warrant. The judge grants it (after all, if I've got nothing to hide...etc) & they come knocking on my door.
It's early morning & I'm asleep so I don't hear the knock at the door or the statements that it's the police with a search warrant. What I do hear is my door being busted down. Since I have no drugs or proscribed weaponry I don't jump to the conclusion that it must be the cops. Further I catch a glimpse of a man with what looks like a submachine gun in a mask entering my place. 30 minutes & 4 seriously injured cops later I realize that they in fact are cops, but since I shot 4 of them (at least) thinking they were un-uniformed criminals I have the option of surrendering & going to jail for a long time (based on how the courts seem very protective of cops despite the circumstances) or fighting it out & at least dying like I was free.

All this because a person claimed I had proscribed objects, a judge thought that probable cause was satisfied & cops didn't realize that breaking & entering into a persons house after a 20 second knock time might be dangerous for them & best avoided.

Or alternatively Spoons reads about a militia member, gun nut, anti-government psychopath who shot a few cops before a police sniper took him out.

All over someone's assertion that someone has objects that are verboten.

It's simply not enough to justify the risk to the individuals or the officers to break into someone's house. & yes, I realize that many drug dealers, gun runners & others who are on the opposite side of the law will get away with their crimes. That's a very acceptable price to pay to ensure public safety.

But busting in someone's house is not the only way to catch someone committing such a crime. What would be objectionable about arresting someone as they leave their home or in some other such place? Yes, it'd be more time consuming, but again I see this as an acceptable trade off for ensuring the safety of the public in their homes.

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.

But what SCOTUS did was in effect say that as long as the paperwork is in order a person's home is not safe from government intrusion. It set the Castle Doctrine back several centuries by doing so, even if in this particular case you agree with the actions of the cops.

& change the circumstances around somewhat. It's easy to sympathize with the cops if you agree with the War on Some Drugs since they did in fact find drugs, but would your view be different if the object of the warrant was to find outlawed firearms (future tense, as a 6 shot revolver banned by some Republican-Democrat Smart Gun law ten years from now)? Or would it be different if the object described in the warrant was not found? Or perhaps if a radical such as myself didn't know or believe that they were cops & a gunfight ensued despite the objects not being on the premises?

So I object to SCOTUS' decision not because I think all criminals should go free (though in this case I do question the validity of the law making it a crime) but because there is an inherent danger to all parties when the state busts into a home without permission.

If you still disagree I'll be more than happy to publish your responses here & continue the debate.