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Comment by rayiner | Hacker News Reader

The 4th amendment is strong as it has ever been, and the 1st is much stronger.[1] Are police knocking down your door without a warrant? If not that's the 4th amendment working as intended.

What we have here is a system:

1) Clearly designed to pass a 4th amendment analysis;

2) Enabled to to pass such scrutiny be the unprecedented access Americans give corporations to the details of their private lives.

For what its worth I think the NSA programs are bad ideas, in an administration that has had a lot of them.[2] But not every bad idea is unconstitutional, that is to say not every bad idea can be fixed in court rather than in Congress.

[1] In light of this story, who is still mad at the Supreme Court for holding that Congress couldn't shut down the speech of corporations (like the ACLU?)

[2] Menacing over the Supreme Court justices during the state of the union probably being the worst.

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>The 4th amendment is strong as it has ever been […] Are police knocking down your door without a warrant?

Yes: https://en.wikipedia.org/wiki/Kentucky_v._King

Justice Ginsburg , dissenting.

The Court today arms the police with a way routinely to dishonor the Fourth Amendment ’s warrant requirement in drug cases. In lieu of presenting their evidence to a neutral magistrate, police officers may now knock, listen, then break the door down, nevermind that they had ample time to obtain a warrant. I dissent from the Court’s reduction of the Fourth Amendment ’s force.

http://www.law.cornell.edu/supct/html/09-1272.ZD.html

You're haggling over the definition of "reasonable", probably based on your views of the drug laws. Do you think that in 1800, the framers would have considered it an unreasonable search to enter a home they could hear being burglarized? No. That's why the 4th uses the wiggle word "unreasonable."

I'd bet the reason you think Kentucky is different is that you think drugs are a non crime. I do too, but lots of people do. I grew up in "just say no" suburbia. My mom and lots like her (see the reddit meme: scumbag suburban mom) thinks drugs are the worst thing ever.

In any case, Kentucky is an affirmation of the very simple principle that a warrant is not required. For better or worse, the framers did not give us a 4th amendment that admitted no compromises. They gave us one that asked us to analyze whether a search was "reasonable", asking us to reach compromises.

I hate to use the slippery slope argument but once you allow police to enter a residence with evidence as simple as something they might have heard through the door then there's no need to ever worry over warrants at all. How do you even prove what they heard or if they heard something in the first place?

If the officer witnesses someone break into the residence then sure, but just hearing something? That doesn't pass the smell test to me, regardless of whether it was about drugs or not.

What are the sounds of a house being burglarized anyway? The homeowner could just be moving stuff around in the living room when the cops bust down the door without knocking. That's property damage that the homeowner is likely stuck with and in some cases it ends badly with someone getting shot.

This whole no-knock attitude that's been in place for decades is a sad joke.

> I hate to use the slippery slope argument

Slippery slope reasoning is completely incompatible with 4th amendment interpretation, because the 4th amendment is all about what is "reasonable" (or rather, what is "unreasonable.") It's about compromising the legitimate needs of the police with the legitimate privacy interests of the people. You can't make compromises when your retort to everything becomes: "but if we keep going in this direction..."

Consider that the legal definition of "legitimate" is what's changed.

That's the whole point to 'reasonable' though. It allows the effect of the law to change without changing the law itself.

This has worked against the government as often as it's worked for the government. And on the whole it has been instrumental in driving social change for the better.

The same Supreme Court that voted that equality could exist with "sepatate-but-equal" facilities later voted that separate-but-equal was not reasonable and full integration was required instead.

This drives "strict Constitutionalists" batty but I find it's one of the key benefits of our system of government.

Not sure I follow why this is a valid retort... grandparent comment was not arguing against the flexibility of "reasonable," but rather the direction the interpretation is being taken in. I agree that creating future-proofed laws with wiggle room can be beneficial, but that does not mean we have no need to be vigilant against that same wiggle room being used against us.

The problem with "reasonableness" is that there's no single definition of what's reasonable, so you'll get different courts giving different verdicts in similar cases. Instead, couldn't we define things very strictly, but require them to be revised every n years with the current needs and expectations of society?

Dude, I can't even get my computer program to not crash on malformed MP3 files, and the computer program + computer does exactly what I tell it to do.

There's no way to get a legal code that is both very exact and useful in the face of humans who have to implement it.

And even if we could, I don't think revising it every n years is good policy. We should change the law when it's broken, but more importantly changes to the law must necessarily lag several election cycles behind the needs and expectations of society. A court can actually make the change quicker if need be.

Sure, there needs to be a low pass filter of some kind to prevent wild oscillations in the law due to delayed feedback, but we're getting oscillations now in the form of party swapping every 4-8 years. There must be some way to make the law less like a moving average filter and more like an adaptive Kalman filter so it can react quickly when necessary without throwing out the entire USC every election (though I have, in the past, proposed rewriting the entire body of laws from scratch once per generation, with a generational opt-in-based transition from the old set to the new set). Courts should be a last measure, IMO, due to the insane costs of facing one, rather than an integral process of deciding what the law actually is.

I'd like to know what the cops are doing on your curtilage in the first place? Put up an 8ft fence!

An interpretation of the word "reasonable" is literally all discussions of the 4th Amendment have ever come down to, you can't pretend like someone with a narrower scope or "reasonableness" is just haggling over semantics and nitpicking tiny details.

My point is that he's arguing about precisely where the line should be drawn, not offering an example of the police engaging in clearly unreasonable conduct. You can't claim that the 4th amendment has fallen by the wayside just because you disagree about precisely where the courts have drawn the lines in edge cases. You need some stronger evidence than that.

I think, looking at the facts of Kentucky vs. King, that's pretty clearly a concise example of the police engaging in unreasonable conduct.

Actually, I'm not so sure, after reading this:

http://en.wikipedia.org/wiki/Exigent_circumstance_in_United_...

Of course, it all comes down to how reasonable you think our current criminal law policies are.

He's haggling over your objectively incorrect claim that the police are not knocking down doors without warrants. They clearly are.

Whether these cases fits the reasonability test is another matter.

>You're haggling over the definition of "reasonable", probably based on your views of the drug laws.

I'm not haggling over anything. You asked "Are police knocking down your door without a warrant?" I provided the answer, additionally evidencing that the debate over the 4th amendment is not as static as you seemed to be implying.

>Do you think that in 1800, the framers would have considered it an unreasonable search to enter a home they could hear being burglarized? No.

Do you think that in 1800 the framers would have considered hearing the sound of a flushing toilet or people moving to be exigent circumstances?

>I'd bet the reason you think Kentucky is different is that you think drugs are a non crime.

I am not somebody who obsesses over drug law[1]. My reasons for disagreeing with the ruling are better expressed by Ginsburg which is why I provided the link to her dissent, which I recommend you read.

[1] although it's pretty clear that many current drug laws in the US are broken and highly destructive to society. Personally I don't and have never used any illegal drugs so I have no 'skin in the game' so to speak and fear of getting (legitimately) busted by the police over drugs is not a concern I have. So if you are picturing some pothead who spends all day reading the High Times and proselytising about the benefits of weed that isn't me

"anything but google" this: "indiana no knock search without warrant"

I'm serious about "anything but google" "anything but google" this too if you don't believe me: "google search providing different results to different people"

> Are police knocking down your door without a warrant? If not that's the 4th amendment working as intended.

Damn right they are. Exigent circumstances. [1]

Police routinely coerce people into consenting to searches during traffic stops when there is no RAS. If there's a K9 unit around it's even easier; look at how often they just happen to trigger when there's no contraband at all [2]. Does a 56% false positive rate sound reasonable?

And, once they've gained access they've got wide leeway to seize whatever they want in the name of the war on drugs. At that point the owner must pay a bond to contest the seizure, and then has the burden of proving that they were not party to the crime. Note that no warrant is required for property seizure, merely probable cause [3].

[1] http://themoderatevoice.com/110361/supreme-court-expands-war... [2] http://www.rawstory.com/rs/2011/01/06/false-positives-police... [3] BJA publication NCJ-137994 – CIVIL FORFEITURE FOR THE NON-LAWYER

Yes, because the house is guilty until proven innocent!

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