privacy and 4A protections in a post-9/11 world

[BehindBlueI's]

I don't think I ever said investigators are lazy or bad or incompetent, and that is not my intention. I am also not trying to suggest that I have expertise in law enforcement or investigations, other than what I know as a layman. But if law enforcement can take a short cut...they will...just like anybody doing any job. I was simply suggesting that law enforcement should not violate people's privacy and protections against unreasonable surveillance, and good LE investigations should get the same results. Or, are you saying it can't be done without these methods?
Cody

One man's shortcut is another man's efficiency. Everybody does more with less. My shift has been down 3 detectives for years now due to a period of not hiring, the streets getting short, and no replacements available for invest. I worked about 250 hours of overtime last year. So, yes, if I can find more efficient ways to accomplish the same thing I'm going to do them. Let's say I'm working a serial robber who hits pharmacies. The shortcut can be to track his cell phone, set up geofencing, and when he gets close to a particular pharmacy have an alert go off on my computer. Alternately, I can tie up about 4-5 UC guys to follow him around for days or weeks. Yes, the result in this investigation is the same. However, that's warrants that aren't being served, surveillance that can't be done electronically not being done, etc. etc.

Tone can be difficult to convey in writing, so I want to make it clear I'm not trying to be condescending or belittle anyone's opinion. When you are a laymen, you really have no idea what is involved in an investigation. No more than you'd tell the pilot how to land the plane in the safest manner, you can't really assume you know the best way for me to do my job. There is certainly a balancing act between civil liberties and providing a safe environment for us all to live in. However, when you look at what COULD be done or how something MIGHT be abused, you are looking at things like gun control activists look at firearms. Everyone has input on how law enforcement interacts with the community at large, what the laws are, etc. However never make the mistake of thinking its simple enough to be resolved with no experience and no knowledge of how things really work, nor get trapped in looked at only the negatives or hypotheticals.

**to be clear, my state requires a warrant or subpoena for cell phone information unless you are calling 911, in which case your location is automatically revealed.

[runcible]

I don't think I ever said investigators are lazy or bad or incompetent, and that is not my intention. I am also not trying to suggest that I have expertise in law enforcement or investigations, other than what I know as a layman. But if law enforcement can take a short cut...they will...just like anybody doing any job. I was simply suggesting that law enforcement should not violate people's privacy and protections against unreasonable surveillance, and good LE investigations should get the same results. Or, are you saying it can't be done without these methods?

What shortcuts do you take professionally, when others don't hold you to standard?

[TGS]

I don't think I ever said investigators are lazy or bad or incompetent, and that is not my intention.

I guess I was confused by your statements that LE is taking shortcuts, isn't doing good police work, and needs to improve their game.

Or, are you saying it can't be done without these methods?

BehindBluels first paragraph in response to you summed up my thoughts nicely.

[Kingsfield]

The following statement remains unsupported:

....The 4A didn't really do much until 1961.

The Supreme Court in 1949 stated the Fourth Amendment applies to State actions, although corresponding Federal requirements limiting introduction into evidence would not bind the States. Wolf v. Colorado, 338 U.S. 25, 27-28 (1949). But Wolf notes one third of the States as of that time prohibited introduction of evidence acquired from an unreasonable search. So, for example, a review of Atz v. Andrews, 94 So. 329 (Fla. 1922), reveals a court relying on both State and Federal constitutional principles to state the evidence acquired in an unreasonable search could not be admitted in a criminal proceeding. (I don't feel like getting into the detail concerning principles corresponding to standing in the 1920s.)

(I suppose a tedious quibble might involve the extent to which each of these 17 States expressly stated it was relying on Federal principles in finding what was protected. Construction of Federal constitutional provisions often informs State ones, and therefore has an impact, which is inconsistent with asserting the Fourth Amendment "didn't ... do much".)

In addition, it appears Federal prison population did not constitute a de minimis fraction of State prison population, even in the 1920s. See, e.g., Crime and Justice Atlas 2000, at 42 (showing a perhaps 1:10 ratio).

So, one has in advance of Wolf, a substantial amount of persons entitled to prohibit introduction in criminal trials of evidence improperly seized--Federal prisoners representing a material portion of the prison population as a whole under Fourth Amendment principles, and then a significant number of persons charged with State crimes.

I don't feel like counting the populations the one-third of the States in terms of incarceration rates or general populations. That's an arithmetic quibble, the results of which would not, in any case, alter the conclusion allowing one to reject the unsupported conclusion "The 4A didn't really do much until 1961."

Moreover, at various times, the components of the restrictions on searches and seizures were substantially more fulsome than at present. Gouled provides one example. Trupiano v. US, 334 U.S. 699 (1948) provides another:

"In other words, the presence or absence of an arrestee at the exact time and place of a foreseeable and anticipated seizure does not determine the validity of that seizure if it occurs without a warrant. Rather, the test is the apparent need for summary seizure, a test which clearly is not satisfied by the facts before us."

Thus, along a number of dimensions, evidence protected from unreasonable searches was greater at assorted times before 1961.

There are certainly some aspects that transitioned in the opposite direction. But that does not negate the basic point that the following claim remains unsupported:

....The 4A didn't really do much until 1961.

[Tamara]

Yay! Lawyer fight!

(This is where you learn stuff, kids. Get out your legal pads.)

[joshs]

I guess the real disagreement is on the meaning of "much." To me, the fact that 2/3 of the states had no exclusionary rule, and, of those that did, several had it because of state analogues, not the 4A, combined with the fact that the reasonable expectation doctrine hadn't even started is sufficient to say it didn't do much. I guess you disagree.

[Josh Runkle]

I have - what some call a simple minded - series of thoughts about that.

Stop the fucking wars on terror and drugs.

Arm the populace.

Eliminate the Patriot Act, related legislation, and all forms of government surveillance and databasing at all levels - without a warrant. Severely curb the powers of Congress and Executive Branch to conduct such operations. Particularly on US soil.

Short term a peak in violence - long term terrorists will get whacked by a smarter, tougher, populace. If Americans cannot or choose not to protect themselves and their families, then they deserve to be culled from the population in true natural selection.

Freedom = Personal Responsibility.

-Rob

Well said. I agree wholeheartedly.

[Josh Runkle]

The envelope includes content since it has the addressee and sender.
The problem is that in today's environment I can have a SWAT team knock down my door simply because a guy who is under investigation for terrorism misdialed my number. If LE can use the information where the users had a reasonable expectation of privacy, to get a warrant, then the information is content.
Cody

But, if you're doing nothing wrong, you have nothing to worry about. I mean, sure, you might be surprised in the middle of the night, grab your gun to protect yourself as you scramble to find out what's going on, and sure, you might get shot and die because you have a weapon in your hand, but at the end of the day, your corpse will be exhonorated, because the system always gets it right. If you're doing nothing wrong, you have nothing to worry about.

[Josh Runkle]

But, if you're doing nothing wrong, you have nothing to worry about. I mean, sure, you might be surprised in the middle of the night, grab your gun to protect yourself as you scramble to find out what's going on, and sure, you might get shot and die because you have a weapon in your hand, but at the end of the day, your corpse will be exhonorated, because the police always get it right. If you're doing nothing wrong, you have nothing to worry about.

I should add: this should not be interpreted as "cop-bashing", but rather "barely-based, no-knock warrant entry" bashing. I have a problem with the system, not those who work for it.

[45dotACP]

Can we add lock down the boarders?

No, but we can get all hands to repel boarders...


Sorry, I just couldn't help myself.

I agree with Rob. The so called "War on Terror" has been used as justification for many a misdeed by those in power, republican and democrat alike. After all, it was the Bush administration that allowed the Patriot Act to pass and it was the Obama administration that allowed a certain NDAA with a fairly nasty provision regarding how we treat people who are suspected terrorists, to pass. Call me tinfoil-ey hat conspiracy theorist all you want, or maybe I'm just misinformed but indefinite detention without trial is a total no-no and our founding fathers would be pretty damn close to throwing a party in Boston Harbor by now.

The way I always saw it was this...history has proven that the actions we take today tend to come back and bite us in the ass. For instance, we were a big fan of Mujahadeen when they were fighting the Soviets, we were all about Iraq when they were at war with Iran...the list just goes on and fucking on. IMO This is why we should not allow torture, suspension of Habeas Corpus, etc....

Because God forbid, the tables be turned on us and we find ourselves no longer the majority...well we wouldn't want to be tortured, or held in prison forever without trial.

Carry on. Gonna go put on my tinfoil hat now and watch for the black helicopters.