Federal Court Throws Out Six Weeks of Warrantless Video Surveillance
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As it stands, it has the following effect:
1. If illegal actions by policemen violates the rights of someone commiting a crime, then the evidence obtained this way is discarded, letting a true criminal go free, assuming that the evidence actually proves guilt.
2. If illegal actions by policemen violates the rights and privacy of an innocent person (e.g. me) then nothing happens.
In both cases, any benefit of the doctrine goes to people who don't deserve it - the lawbreakers with or without badges and uniforms.
For most law-abiding people who value their rights and privacy it would be rational to request that the doctrine is "violations by police in gathering evidence get handled by existing law".
If a policeman obtains evidence by breaking down a door without a warrant and taking some documents, despite being a professional with special training on what their specific rights and duties are, then let the evidence stand but let also the policeman stand trial (not disciplinary action, but a proper trial) for breaking and entering. Just as for cases of policemen shooting people - at least worldwide, given the recent events I'm not sure anymore how it's in USA.
"Listen, Mike, we really need this drug dealer in prison. Break into his house, and get use the evidence we need. Penalty for that is, what, a year in county lockup? Plus we're just about certain you'll get out in six months for good behavior. Plus, hey, it's Christmas time, couldn't your family use a nice bonus for presents?"
(Assuming that the doctrine works in the way I understand and there aren't nifty extra failsafes built in)
Police in the US get an extreme amount of benefit-of-the-doubt from the public and especially prosecutors' offices (police keep them in business and both sides value their working relationships), as we've seen in recent newsworthy court cases- this alternate approach you've suggested does not appear to be an improvement except in theory.
I'm fairly sure that if a cop had a 'less than 10 percent of the time' risk of permanently ending his career, then they would be much more careful than they are now. Of course, there could be an argument that we as a society don't want our cops to be too careful with rights of criminals, we also have an interest in them taking some risk and getting risky evidence; but that's a bit different direction of values/morals/rights.
However, police have qualified immunity in such suits unless their actions were in violation of "clearly established law." Under qualified immunity, the police can't be penalized for guessing wrong when it comes to unsettled law, or when a court decides to take the law in a new direction.
This decision is quite a departure from the general rule that anything visible from public property is outside 4th amendment protection. So the police here would likely be protected by qualified immunity for failing to anticipate that a court would take previously well-established law in this new direction.
[1] http://en.wikipedia.org/wiki/Bivens_v._Six_Unknown_Named_Age...
[2] http://en.wikipedia.org/wiki/Enforcement_Act_of_1871_(third_...
I don't believe that to be true. Were Vargas in a suburban or metropolitan area the ruling may have been quite different. The order specifically mentions that being in a rural, isolated area comes with different expectations of privacy.
16 The American people have a reasonable expectation of privacy in the activities
17 occurring in and around the front yard of their homes particularly where
18 the home is located in a very rural, isolated setting.And your example of "breaking down a door without a warrant and taking some documents" doesn't help an innocent person who's being framed. Further, a possible trial is something of a deterrent... but not much (see Eric Garner and grand juries).
The police "know" you're a pothead so they break into and search your house. The search is entirely illegal but you go to jail anyway, after all they found some evidence. If they didn't find some evidence that's just a fine paid out of taxpayer money (police are similarly unaccountable almost everywhere).
By having the fruit of the poisoned tree doctrine police have a direct incentive to follow due process to the letter, least they get evidence or their entire case thrown out of court.
As other commenters here point out this doesn't always work out well in the US, but at least it's better than nothing.
Note that in the parent post I'm explicitly mentioning direct criminal action against the officer personally, not compensation claims against the police district; as far as I understand, fines are not an option for felonies in USA, and even the lightest possible 'guilty' sentence would automatically get such policemen out of their jobs after the first such act.
Sure, having criminal action against the officer personally would be nice, but it seems as though it practice that's much easier to erode than the fruit of the poisoned tree doctrine. After all who polices the police? At least with a doctrine like that you have a different branch of government handling it. In any case prosecuting police for violating the law is not mutually exclusive with the fruit of the poisoned tree doctrine, both are nice things to have.
I really don't see any downside to the fruit of the poisoned tree doctrine. If police are doing their job as they should it'll never even come up, but if they aren't they're committing a grave offense against society as a whole, and shouldn't be allowed to limp away with whatever illicit evidence they've gathered while performing illegal acts.
Concepts like "rights" and "freedom" are easy when it is people you like doing things that you like. It is so easy, that it isn't even necessary to bother with the formalization of those concepts in these easy cases. The entire point of "rights" and "freedom" is that they must be upheld for the people you hate, doing things that you hate.
When judging the level of freedom in a society, you don't look at how the normal citizen is treated; you look instead at how the underclass, criminals, and other disliked groups. If their rights are overlooked and ignored, any claims at being a "free society" is just marketing/PR.
If there is every a doubt in your mind, consider that at some point, your actions, race, or lifestyle might make you the target of similar hate. It is very bad for any majority group to be able to take the rights away from any minority group.
I'd point to the overturning of CA Prop 8 as a major success of the equal protection clause, and a good example of this concept in practice. - http://en.wikipedia.org/wiki/California_Proposition_8_(2008)
You don't have a constitutional right to be free from being photographed in public spaces.
If someone wants to follow a police car from a safe distance for weeks and videotape it to capture the civil rights infractions done by its officers; this is now an unconstitutional activity?
The proper way to place a check on this power is for people to decide this is not a good way to spend its money rather than absurd judicial gymnastics.
> A month later, police observed Vargas shoot some beer bottles with a gun and because Vargas was an undocumented immigrant, they had probable cause to believe he was illegally possessing a firearm.
If they had seen him shooting cans when walking by on the street, and then gotten a warrant to search his house, this would've been totally legit.
Edit: don't get the down votes. Do we not like gun control or what?
Mind you, I'm super glad the judgement was made in his favor, but only because of HOW they did it, not why.
Edit: Reading your comment again, I think what you wrote can be taken either way (he was illegally possessing firearms, or he was possessing illegal firearms). So we may be in complete agreement here.
Edit: Thanks for the clarification below.
So basically, it could be a legal firearm possessed illegally, or a banned firearm, based on his wording.
But I read the post in the manner that I'm guessing was intended, so I personally don't see it as a big deal.
The feds and the states are simply not allowed to make laws restricting ownership or possession of firearms. And yet such laws get passed and enforced anyway.
His defense would have to explicitly bring that up, and I doubt there are many attorneys that want to go there if they could possibly avoid it. That same argument has already been rejected at the appellate level by the 4th circuit, so it would likely have to go all the way to the SCotUS to stick, and unlikely they would decide to hear it.
In any case, even if he ate babies in his spare time, I emphatically reject the idea that plinking cans is sufficient to generate sufficient suspicion for a search, as it is not a crime in itself when nothing else is known about the person doing it. It is, on its face, an innocent activity.
If we want this country to not be a police state, we have to accept that fighting crime will have a minimum level of difficulty. The Blackstone Ratio suggests that this guy might have to go free in order to protect innocent people from bogus police tactics in the future.
It's not a slam dunk. The second amendment reads:
> A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."
Who are "the people?" In the Preamble to the Constitution, the phrase "the people" clearly refers to the political community creating the new government, which arguably excludes illegal aliens. The Supreme Court in Heller v. District of Columbia construed "the people" in a way that is consistent with that use, and which lower courts have taken to mean that illegal aliens don't have second amendment rights.
However, the bill of rights uses "the people" to refer to the first amendment right to peaceably assemble, and the fourth amendment right to be protected against unlawful search and seizure. If "the people" is interpreted consistently for all the amendments, that implies that illegal aliens don't have several rights under the bill of rights, which is problematic.
See: http://scholarlycommons.law.northwestern.edu/cgi/viewcontent....
In any case, the Constitution is a limiting document. It restricts what the government is allowed to do. In the context of the 2nd amendment, it is not allowed to create arms control laws. It does anyway. Differences in the de facto exercise of rights between citizens and non-citizens are likely due to different levels of access to the court system and in relative political clout, rather than some underlying intent that is not obvious in the document itself.
By plain reading of the law, "the people" means the people. It includes any humans acting in their own capacity, as themselves, rather than as the agents or representatives of another legally distinct entity. Begging the pardon of the state, and its judges, but the people do not find it convenient for the state to redefine what personhood means, especially when done in a way that skirts the limits set forth by the people for the government.
You have to be a lawyer to think that "the people" does not include any person. A non-lawyer can apply the common meaning of the word and use it without stopping to argue over whether it means what it means.
I don't give a fig whether it is about Mexicans or Tenctonese. If they are people at all, they are people who have the right to keep and bear arms.
Besides that, if "the people" were so defined as to include only those people who created the government, I, as someone born more than 200 years later, would certainly not qualify. If you exclude illegal aliens on that basis, you exclude everyone who did not explicitly ratify the original document, which is to say almost everyone alive today, excluding only those who have sworn an oath of office. If I am not thus protected by the law, I am not obligated to follow it. Do we really want to open up that can of worms? Lysander Spooner's "No Treason" essays may elucidate further, but I think perhaps it would be a greater boon to civil order if we agree that "the people" are not necessarily a specific subset of people.
Many people argue that you've got it backwards. I've been told that some of the founders opposed the Bill of Rights precisely because they feared it would be treated as an exclusive list of limitations.
The rest of The Constitution, in stark contrast to the BoR, grants specific powers to the federal government. Some people argue that it's that body of text which should be considered an exhaustive enumeration. That is to say, any claimed power that can't be explicitly justified under those articles is not granted to the federal government.
In Anglo-American legal tradition, an explicit enumeration of included elements is an implicit exclusion of anything else. This is contrary to common sense, where if you say my grocery purchase includes apples and oranges, you might also be buying bread. Not so in law. If you write a list that includes apples and oranges, there is nothing else; that is the entirety of the list.
When the Constitution explicitly enumerates the powers of the government, it is saying that these things are the only things this government is allowed to do. In practice, the government found the vaguest and broadest enumerated power, and cites it as its justification for everything else that it does.
With the Bill of Rights, the 9th and 10th were inserted to allay those fears. Read the 9th again: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. That is an explicit reversal of the general legal principle that an enumeration is a complete list. Otherwise, it would indeed mean that the people have no other rights beyond what were enumerated.
So it is both enabling and limiting. The two are not mutually exclusive. But as the 9th amendment shows, there was a default assumption in place that requires the 9th to be inserted to explicitly contradict. Those people that argue that it is an exhaustive enumeration are most likely correct. But de jure and de facto exercises of power are sometimes different.
If you enumerate a power that says "...and anything else the Congress decides to do", then there is no limitation. The government doesn't even need to bother with the enumerated powers. Just throw everything into the catchall clause, even if it could be justified elsewhere, just to save time. And that's what the interstate commerce clause has become. An overly broad interpretation of that one power renders the remainder of the document largely irrelevant.
That's why the Bill of Rights was necessary. The Antifederalists thought (correctly) that the federal government would grow well beyond its initial limitations. Madison was aware of their arguments, so in addition to the whitelist of enumerated powers, there had to also be a blacklist of enumerated prohibitions. And it had an explicit declaration of "plus other stuff we didn't explicitly list here".
It should be a stark contrast. The main body of the document was written by and for optimistic Federalists. The Bill of Rights was written as a failsafe mechanism to address the concerns of the Anti-Federalist opposition, for when the original document inevitably failed to contain the unrestrained exercise of government power. Some people predicted before the thing was even signed that it would fail at its weakest point, which just happened to be the interstate commerce clause (but if it wasn't that, it would have just been something else).
The fact that we are now operating largely on the failsafe backup mechanism is a concern. We have no backup for the backup. The smart thing to do, rather than argue about the right to bear arms for illegal immigrants, is to patch the original point of failure. Fix the interstate commerce clause to make it more painful to use as a catchall, or repeal it entirely.
As Justice Jackson said 'we are not final because we are infallible; we are infallible only because we are final.' The Supreme Court and those deriving from it exists not to establish truth but to settle controversies, even though this may mean inconsistent behavior over time. In that sense, it functions OK.
Echoing your 'problematic' point, the author concludes:
"My point is simply this: if the Second Amendment protects a truly fundamental individual right, then barring any firearm possession by all illegal aliens cannot be upheld without more—a more robust judicial holding that its fundamental protections are categorically denied to a class of persons, or a more-than-cursory legislative justification for the restriction of these protections. If the statute can stand as is, then perhaps the right to bear arms is less central to the constitutional pantheon than its most zealous advocates would have us believe."
In the Preamble to the Constitution, the phrase "the people" clearly refers to the political community creating the new government, which arguably excludes illegal aliens.
This would seem to also exclude citizens who do not vote or hold office. And oddly it would imply that an undocumented drug-dealer with a fake voter ID is more protected than otherwise law abiding 'illegal alien' who dutifully supports the government with their taxes. How is that resolved?
http://www.ca5.uscourts.gov/opinions/pub/11/11-10086-CR0.wpd...
So, my question was, if they had a reasonable suspicion he was a drug dealer but not enough evidence to obtain a warrant, then why not let ICE handle the matter since he was an illegal immigrant anyway?
And to be clear so people don't get it in their head I have something against immigrants, I'm all for people immigrating to wherever they want to live, but it's 100% unfair to those immigrants who did it legally to treat illegals like anything other than an illegal immigrant who should be deported.
P.S. Is using the term undocumented immigrant supposed to be the PC way of saying illegal immigrant?
That effectively lowers the standard for searching homes of illegal immigrants from probable cause to reasonable suspicion. That's probably a harder political sell than trying to get enough evidence to find probable cause for violating of a gun control law.
I'll agree, letting ICE search the home would be a slippery slope and probably a bad idea as well. But at the very least, if they want to address the problem of him being a drug dealer then they should be able to use the fact that they know he is an illegal to at least deport him and solve the drug issue in a lateral manner, right?
I'm not sure it works that way because any negativity the change was likely to alter just gets transferred to the new word.
I've read of a philosopher who made the argument, "the theory of evolution can't be true, because if it were true, that would imply that someone could make a lot of money by replicating images of Elvis Presley." My comment has the same structure, but I'm already aware that the evidence directly contradicts the stated point. So "your theory of terms having negative valence based on their meaning (instead of arbitrarily) is incorrect, as can be seen by how the slow of wit gained new respect from society when the socially-enlightened term 'retarded' replaced the old, denigratory 'stupid'. According to your model, 'retarded' would be an insult because of its negative meaning."
The action of being in the country might be unlawful, but the person himself is not unlawful. The use of "undocumented" instead of any other word not a "tactic to downplay the issue", instead it express the lack of legal residence status is due to not been able to obtain documents to correct its residence status
If we transfer the characteristic of the action to be a characteristic of the person then if you have drive above the speed limit, you are an illegal driver; and so on
But don't worry, I am pretty sure ICE was waiting for him outside the court
I'm personally OK with 'illegal immigrant,' but when you say a person is illegal (qua 'illegals') then that comes across as an implicit denial of legal personhood. This might seem pedantic, but the US constitution already distinguishes between rights of citizens and of persons in general, while many people who object to illegal immigration would like to deny the rights to accrue to all persons to those who have immigrated illegally, including myself. Thus, the term has become somewhat loaded to a greater degree than the authors of the current law may have intended.
As for terminology, IANAL. From my viewpoint if you illegally immigrate, through action or inaction, then you are an illegal immigrant. I've never much liked the term alien as it has also been used to describe little green men and such.
I think taking issue with calling a person illegal is splitting hairs, but I'll go along. The person isn't illegal, but their residency status is illegal.
And my last point, to reiterate on what I said earlier, I have no ill will towards illegal immigrants and know they have basic rights. I would expect they get treated fairly under our laws (well, as fair as out laws can be). That being said, they are not here legally and I would expect that changes the legal avenues available to them.
Switching from illegal to undocumented can be attributed to the effort to downplay such people's involvement in what is essentially a crime. I have read the reasoning behind such a change, that illegal criminalizes the person and not their actions. Which seems to be what you are saying. But the term does in fact name their actions, immigrating illegally, and not just the person. The person committed an illegal act, it is not unwarranted to name them as such. It is simply an attempt to separate the person from the action, which you cannot since the person committed the action.
As for your example. I would agree that in some instances such a person could be described as an illegal driver. Not for a minor offense, but if they committed an act that the law then barred them from operating a motor vehicle then they would indeed be an illegal driver if they later drive. Much like an immigrant is barred from entering the country outside of legal means.
To reverse your logic, bank robbers can just be described as undocumented withdrawers. But somehow that doesn't seem to make sense.
The rational for this difference is sound, but I don't see this happening because the public decided undocumented was a better word then illegal for the direct object. More likely the language would adapt and allow the "incorrect" usage, for the same reason we're losing our irregular verbs.
People can have many titles. A felon can also be a father, a loving husband, a liar, etc. But why should a person who has immigrated illegally not have the title of "illegal immigrant" among their list?
The reasoning is sound and a quick look around at the groups who have been pushing the change in language, for right or wrong, shows that many of them use that very reasoning. To downplay the issue.
The funny thing about all this is I had a similar thread happening today about the proper use of the description "illegal firearm".
However, the far right tends to shorten it to "illegals", which I find unacceptably pejorative.
One can do many things and thus have many titles, but I fail to see why a person who immigrates illegally should not have the title of illegal immigrant.
If you do not have legal status in the US, you are in the country illegally, thus you are an illegal immigrant.
And yeah, that's pretty much exactly what it is. Some group of fools think that referring to immigrants with the qualifier "illegal" is somehow a slight against the person rather than their legal status.
Sure they can! All immigrants are required to have proof of status on them at all times. It's rarely enforced, but it is the law.
Before I became a citizen I carried a copy of my green card with me at all times.
Yes. But if you give them drivers licenses then they are documented.
http://www.huffingtonpost.com/2014/12/15/california-undocume...
(Theres no judgement here, it's just a very strange way of dealing with the problem at hand)
They make it sound like the poor "undocumented immigrants" are being unfairly punished by having their cars impounded. WTF, really? They are here illegally. They should be deported. If they want to immigrate then do it LEGALLY like millions of other people.
Do I think we should change the immigration laws to make free movement of people easier? Hell yeah. Do I think we should be obliged to follow the laws as currently written? Of course. If you do something illegal you get punished, simple enough.
You consider yourself american in every way and know no other country.
Committing a crime requires you to have awareness that what you are doing is likely something illegal. Children like these have no idea.
Article 2 of UNRC says:
> 1. States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child's or his or her parent's or legal guardian's race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.
> 2. States Parties shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child's parents, legal guardians, or family members.
Article 7 says:
> 1. The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and. as far as possible, the right to know and be cared for by his or her parents.
Article 8 says:
> 1. States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference.
> 2. Where a child is illegally deprived of some or all of the elements of his or her identity, States Parties shall provide appropriate assistance and protection, with a view to re-establishing speedily his or her identity.
Article 15 of the UNDHR says:
> (1) Everyone has the right to a nationality.
> (2) No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.
Most recent laws do not require mens rea.[1] It used to be that conviction of almost any crime would require mens rea, but there are now so many complex laws in the western world, (over 10k felonies in the USA, and at least 3000 federal ones;) that this requirement has been relaxed in most cases.[2] I believe that mens rea should be a requirement of all laws, and that the criminal laws should be drastically simplified, but my will is not law.
[1] http://en.wikipedia.org/wiki/Mens_rea
[2] http://www.wsj.com/articles/SB100014240527023043198045763896...
The other issue would be a baby brought here illegally, right? Answer me this, how did they get services, like schooling, when they have no legal status to be here? If their parents are not legal residents, how are they getting paid? If they are getting paid under the table then there is no tax money going into the system for the services they and their children receive, right? So, if we rewind back to when the child was first enrolled in school, how did that happen? they should have been identified as a non-legal resident at that point in time. The fact that they made it until high school is tragic but still not legal.
Really, how is it that an illegal resident can do things like enroll in school, register a car, etc. when they have no legal standing to be here? If you are here legally you have a visa, green card, or citizenship, right? Those are all verifiable states.
[1] http://www.wsj.com/articles/SB100014240527487044715045744389...
crime n. an action or omission that constitutes an offense that may be prosecuted by the state and is punishable by law.
As far as the laws being arbitrary and/or self-contradictory, I won't disagree. THAT is what all the immigrant advocate organizations should be addressing. Not finding ways to make a person living here illegally get things like drivers licenses. Get the laws changed so they can more easily apply to live here legally.
Which is going to increasingly be a problem. This whole thing could have been whitewashed by having someone "walk by" the house after seeing the warrantless surveillance (a la the NSA to DEA "tips"). I'm not sure what the answer should be, but the police can easily circumvent this ruling in the future.
In essence, it's a process whereby intelligence services and law enforcement agencies conspire to knowingly violate the civil rights of the people they target while perpetrating an overt fraud upon the court - all in the name of "protecting national security."
The article states this was a rural area, so it's quite possible that his front yard isn't even visible from the road, which is why they had to install cameras (possibly even on his property) instead of parking across the street for a stakeout. Especially given that he was shooting bottles or cans in his front yard, I'm willing to bet it was off the beaten path. I don't know the laws in Washington, but here in Georgia there are laws about shooting near public roads and other people's property. Even though my own home is in a semi-rural area, I'm not quite far enough from the road to do that.
So when the cops put a camera on the pole in question, did they have to get the permission of the utility company? I can't imagine that going over well without a warrant, if for no other reason than they don't want some third party disrupting their power or communication lines.
Why did they need to wait for a gun to appear? If he's an illegal immigrant.. isn't that, well, illegal?
Not all crimes allow for a warrant to search property. Determining his immigration status does not require a search of his house. Charges for illegally possessing a firearm would usually involve obtaining the firearm as evidence of possession, hence a warrant would be issued.
Is two weeks too long to set up surveillance? What about two hours?
I really hate the "reasonable expectation" standard in general and this ruling does nothing to clear the waters.
in other words, will this reduce the unlawful use of surveillance tech, or merely prompt officers/agents to walk by places 'by chance' to observe things 'serendipitously' because they're still using inadmissible surveillance tech but also know they'll need to fabricate something plausible for the courts?
As much as I support the rule of law, there's no way I can interpret that as benefiting mankind in any way.
Really? Can you really not see the broad benefit to society of teaching the authorities that they must obey the law?
If the police was sure he deserved it and had the evidence to prove it, they should've just gotten the warrant. If they weren't, then they were just fishing and waiting for someone co commit a crime. And that's not just immoral, but against the Constitution.
That's what they are doing, this is how jurisprudence works.
Hadn't they challenged the warantless spying, it would have made a precedent in court. The police could have relied on the acceptance of the evidence in this case to do it again, anywhere in the US.
What good does a warrant system do if the government doesn't follow the law? Trials like this are how courts get the executive arms of the government to follow the law. You'll notice that the presiding judge actively solicited a brief from the EFF.
Of course, if you are the NSA and aren't charging anyone with any crimes, you don't have to worry about suppression hearings and the judge who issued it can never have that decision appealed like they could in a civilian court...
A co-worker who was on law school explained these rules are to make sure an innocent person is never found guilty, even if that means letting criminals walk.