Comment by perihelions | Hacker News Reader

Comment by perihelions | Hacker News Reader

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> "So in this case the government is raiding the home of someone who did not commit any crime, in the hopes of getting at people who might have."

That's unequivocally a lawful basis for a court-ordered search warrant. They must have probable cause that the person being searched has evidence of a crime; not necessarily that the search target and the criminal suspect are one and the same. Search is investigative; not punitive.

The newsworthy part of this is it's a journalist they raided, and to go after their journalistic sources at that. It's previously been a DoJ policy not to go after the media for things related to their reporting work. But that policy wasn't a legal or constitutional requirement. It's merely something the DoJ voluntarily pledged to stop doing, after the public reaction to President Obama's wiretapping of journalists in 2013,

https://en.wikipedia.org/wiki/2013_Department_of_Justice_inv... ("2013 Department of Justice investigations of reporters")

> Search is investigative; not punitive.

Let's be real, it can be both. A legal, valid and justified search can be done in a manner calculated to inflict maximum pain. Raiding in the middle of the night instead of when they step out their door in the morning, ripping open walls when all they're really looking for is a laptop, flipping and trashing the place in a excessive manner, breaking things in the process, pointing guns at children, shooting the family retriever, etc. I don't know if they took this raid too far in any of these ways, but it wouldn't surprise me.

What recourse would an American have against a punitive search? And what if something turns up which would retroactively justify it?

> "And what if something turns up which would retroactively justify it?"

US constitutional law prohibits the introduction of evidence obtained illegally.

https://en.wikipedia.org/wiki/Exclusionary_rule ("Exclusionary rule")

There's no "retroactive" exception. The core point of this rule is to deter police from intentionally violating people's rights, under the expectation that what they find will, "retroactively", vindicate them. Won't work.

> Won’t work.

How would you know when it did? You can’t “retroactively” justify an arbitrary search under the exclusionary rule, but this doesn’t exclude evidence tangential to a legally-executed warrant during the execution of that warrant. For example, suppose someone is suspected of illegally possessing wildlife. A search warrant is issued on the residence. No wildlife is found, and in fact no wildlife was ever on the premises. If officers find large quantities of cocaine during the search, they aren’t precluded from making an arrest, because the warrant used to gain entry and conduct the search was legal.

https://en.wikipedia.org/wiki/Parallel_construction

Only if it falls under the "plain view" doctrine, which is not unlimited:

https://en.wikipedia.org/wiki/Plain_view_doctrine

> In Arizona v. Hicks, police officers were in an apartment investigating a shooting and suspected that a record player in the apartment was stolen. The officers could not see the serial number, which was on the bottom of the record player, so they lifted the player and confirmed that its serial number matched that of one that had been reported stolen. However, the Supreme Court ruled that lifting the record player constituted an additional search (although a relatively nonintrusive one) because the serial number was not in plain view.

See also: parallel construction, which has come up (rightfully so) in HN threads about dragnet surveillance.

Constitutional law doesn't mean anything when the authorities don't respect it. Constitutional law won't stop you from being arrested or killed if you don't fully submit to an authoritarian government.

There were laws in Germany to prevent what Hitler did. It still happened.

Depends what you mean by "the authorities." It's a demonstrable fact there are many small local PDs that don't give a shit about the first, fourth, or fifth amendments to name a few. That doesn't mean the Constitution "doesn't mean anything" in those places.

> What recourse would an American have against a punitive search?

None. The endless videos, from better-years-gone-by of people refusing to answer questions at the border then having drug dogs run all over their car to scratch it up was my first exposure to federal agents acting maliciously.

You can attempt to sue for damages, but the suit is likely to be dismissed because law enforcement and legal adjudication are tightly coupled and very friendly in ways that subvert the proper functioning of justice. More likely you'd just invite more harassment for daring to attempt recourse at all.

How can you sue for damages when a search is done within the bounds of the law?

You can sue for anything, whether or not you win is another matter. Civil and criminal court also don't have the same rules or standards for evidence and culpability. Whether or not actions were legal is not really what is being adjudicated there.

Well the first half of the sentence you're replying to is "a legal, valid and justified search." So if your question is "what recourse does an American have against a legal, valid and justified search" the answer is obviously and correctly "none."

You might be able to argue harassment or malicious prosecution if it's just one part of an ongoing campaign but even that is going to be hard to argue if everything is within the bounds of the law.

> A legal, valid and justified search can be done in a manner calculated to inflict maximum pain.

See "three felonies a day" - if everyone will casually and unknowingly break some law daily, selective enforcement can be used maliciously.

Anyone who has had their home searched AKA ransacked by law enforcement knows that searches are effectively punitive.

I agree that's what GP wrote, but I think GP's point is that it's not illegal for journalists to have classified documents, so it does not qualify as probable cause.

> it's not illegal for journalists to have classified documents, so it does not qualify as probable cause

It's amazing how many people offer free internet advice off of ideological groupthink rather than actual laws.

This raid was authorized by a warrant. Do you really think a judge doesn't know the law, but you do?

If a crime happens in your neighborhood, and you have a camera, the cops could get a warrant to search your footage. It doesn't mean you committed a crime, it just means you can be compelled to provide information pertaining to an investigation.

Yes, but to continue the comparison, it would be weird/aggressive/intimidating if the cops raided the neighbor's home and took the device and all hard drives on the premises to get the footage instead of the normal methods of compelling someone to provide the footage.

Especially, if as is the case here, the criminal was already behind bars.

Try reading the comment you replied to again. A valid reason for a search is the collection of evidence of a crime. Which orthogonal to whether the person or premisses committed a crime.

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