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Comment by post-it | Hacker News Reader

I don't really see an issue with this section. A judge still needs to issue a warrant, they can also additionally waive the requirement that the cop gives you a copy right away, in special circumstances.

Like are you envisioning a "I totally have a warrant but I don't have to give it to you" type situation? I think it's fairly unlikely, and you would likely be able to get the search ruled inadmissible if a cop tried it.

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Are you familiar with parallel construction? That's what this is for. If they have a warrant and show it to you, it says what they can search and why. If they don't tell you what they're searching for and why, they can look for anything, and then construct a separate scenario which just happens to expose the thing they knew would be there from the first fishing expedition. They then use this (usually circumstantial) evidence to accuse you of a crime, and they can win, even if you didn't commit a crime, but it looks like you did. And now they can do it with digital information, automatically, behind the scenes, without your knowledge. (or they can take your laptop and phone and do it then)

But the warrant still has to originally exist with, presumably, a timestamp that shows it existed prior to the search. And modification of the timestamp or lack of such a feature would be a good way to get the evidence thrown out?

That’s not how evidence works in Canada. Illegally obtained evidence is still evidence - you simply also have a tort against the officer for breaching your rights.

It would be inadmissible if the court deems it to impact the fairness of the trial, no? https://www.justice.gc.ca/eng/csj-sjc/rfc-dlc/ccrf-ccdl/chec...

Maybe. Courts aren’t magic machines that do the right thing.

You used a conditional so I assume you also know how such a system can fail. It's not hard to figure out how that can be exploited, right? You can't rely on that conditional being executed perfectly every time, even without adversarial actors. But why ignore adversarial actors?

This is such a weird attitude. We can't rely on anything being perfectly executed every time, so why have warrants at all?

Yes, in some cases, but this is not automatic, nor even close. The more serious the trial (ex, murder, child pornography), the more likely it serves the court’s interest to use the illegally obtained evidence. See https://doi.org/10.60082/2817-5069.3711 for a longitudinal study. Illegally obtained evidence is routinely used.

my understanding: within the context of that specific action; the evidence still exists. If there is less clarity about how and when it was collected though, there is far more opportunity to use broad evidence obtained in the periphery of a undisclosed warrant in other contexts.

The existence of a category of warrants that allows operation that is indistinguishable from warrantless searches creates a kind of legal hazard and personal risk that is hard to overlook. Police lie on the regular.

This is a good perspective, thank you.

...and are allowed to lie within narrow and specific contexts, which seems a "balance of rights" scenario. My fear in this case is that a lie of omission is far more dangerous (specifically for misuse) than a specific & explicitly lie.

I don't get why people downvoted you, this is a very reasonable question.

I agree with you. However, talking about downvotes is not interesting and against guidelines.

Improperly down voted comments typically even out in the end anyway.

There were two commenters that responded 15 minutes prior to your comment. I'd suggest starting there if you want to understand. Then if you disagree with those, you can comment and actually contribute to the conversation ;)

i know this is an american thing, but does it actually happen in Caanda?

one of those 'does it happen' vs. 'can it happen'. the latter is all that matters.

Respectfully, whether it "actually happens" is irrelevant. We want to prevent it from happening.

I don't see the problem with this. It's inadvisable to try to stop the police from doing whatever they want to do if they assert that they have the right to do it. You then get the lawyers involved and sort it out afterwards. Comparing the timestamp on the warrant to the time of the police action should hopefully determine whether parallel construction is taking place.

Nothing good is going to be solved by expanding law enforcement's power, reach, or lightening any existing restrictions. We are not suffering from crimes due to lack of law enforcement's legal scope. It's quite the opposite.

> It's inadvisable to try to stop the police from doing whatever they want to do if they assert that they have the right to do it.

The police regularly lie to and manipulate people about their rights in order to coerce them into consent. If you believe the officer is in the wrong, push back.

> You then get the lawyers involved and sort it out afterwards. Comparing the timestamp on the warrant to the time of the police action should hopefully determine whether parallel construction is taking place.

Parallel construction means they are using the opportunity to go on a fishing expedition. Dealing with it later is too late, they've already gone fishing.

This is a much bigger issue regarding the metadata of a wireless carrier. They're not issuing the warrant to you, they're issuing it to the carrier, who has a duty to reject overly broad searches. If they don't even get to see the warrant, they can't reject the search based on the merits. So now the police get to collect everyone's metadata. Who cares if we look at the warrant after? They've already got the data. Even if they "delete it" after, they already got to go fishing.

Your parallel construction is still too linear; this isn't git history. If they get a warrant AND tell you about it, the warrant dictates what they can look at, what you have to share, etc. Now they can look at anything because you have no idea what is off limits. If they find something unrelated they don't have to act on it immediately; they can then look for motivating reasons to get a warrant targeting an area they know will turn out. They go fishing, but for next time.

It’s a huge problem. The warrant is the document the absence of which lets the public know something wrong is being done to them. A warrant is not just a term for judicial approval.

The public must have the ability to easily verify police conduct is appropriate, and it must match the cadence of the police work.

> The warrant is the document the absence of which lets the public know

Er, the warrant is still there to be examined later, no? It's just not necessarily shown to the subject at the time of investigation.

How can you be sure, when no one ever knows it is there to examine it?

Hence my second paragraph. “Don’t worry, we have a warrant” leaves the public vulnerable to misconduct, actions that potentially cannot be reversed or sufficiently compensated.

Wouldn't having a warrant, with the purpose redacted - if that's the concern, be a good balance of "proof of legitimacy" but also keeping some presumably sensitive information private?

I don't think so, no. The purpose is essential.

A warrant usually isn't a free pass to search everything. They are often narrow.

The warrant is the receipt. Even if you believe it's fine most of the time I'm pretty certain most people would feel uncomfortable if they went to the grocery store and weren't offered one. You throw it away most of the time, but have you never needed it? Mistakes happen.

The stakes are a lot higher here. The cost of mistakes are higher. The incentives for abuse are higher. The cost of abuse is lower.

And what's the downside of the person being searched having the warrant? Why does it need to be secret?

Unless I'm mistaken, it doesn't define what such special situations are. It leaves the determination of providing the warrant to the suspect entirely to a judgement call of the court.

There may well be reasonable scenarios a majority of people would agree that providing a warrant isn't feasible, but that needs to be codified in law in more detail than whenever the judge deems it so.

If the statute doesn't lay out exactly where exceptions can be made, it can be abused.

And everyone should be skeptical enough of government power that they mentally switch out "can" with "will".

why even allow for the possibility of misuse? what is the utility of this little addendum?

Why... would you think this is unlikely? Have... you seen videos of ICE agents claiming to have warrants when they don't?

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