Sunday, May 22, 2011

Gone Fishing in Indiana

(This post is in response to comments left at Hitpiece Interview Targets Newton Co, IN, Sheriff Hartman; for additional background, see also Sheriff Hartman Controversy Update.)

The reason I did not want to debate the Constitutionality of probable cause and hot pursuit was not to end the discussion. Indeed, I expected that, if the discussion continued, I would learn something, and sure enough, I have. My point is this: probable cause and hot pursuit are not random.

I reiterate that there are law enforcement personnel who abuse their power; police power is easy to abuse.

However, random searches are not an abuse of lawfully-derived police power; they are unconstitutional from the start, a police power that is not lawfully-derived, but which is rather the very thing our Constitution is intended to defend us from.

Sheriff Hartman has stated he will not do random searches. I believe him. As any other law enforcement officer, he has the opportunity to abuse his power, to say he saw or suspected something, and to do a search which from a Godseye view would be random, but which he could deceitfully defend in court. This is not the issue here. The issue here is blatantly going down a street where no criminal activity is believed to be occurring, and searching houses anyway, to see if something can be dug up - a random search; goin' fishin' - under the authority of a state supreme court ruling which some claim can be interpreted to mean that such blatantly unconstitutional conduct is in fact Constitutional. I have seen no evidence to suggest that such blatantly unlawful conduct would be anything but repugnant to Sheriff Hartman, or that he would do anything other than arrest the law enforcement officers who attempted it.

Your basic premise, however, seems to be not whether probable cause authority was exceeded, but rather that probable cause itself is unconstitutional, and is itself the problem. For example, you stated:

There's only one clear understanding of the fourth amendment. The discretion of probable cause is forbidden to anyone but judges and grand juries. No warrant = no search, seizure, or arrest.

This is erroneous.

The Fourth Amendment reads as follows:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The Fourth Amendment offers us protection against unreasonable searches and seizures, and then states that warrants shall be issued upon probable cause.

However, certain searches and seizures, limited in scope and under exigent circumstances, have been allowed as being reasonable even despite the absence of a warrant which was deemed unobtainable due to the exigency.

For example, in Terry v. Ohio, 392 U.S. 1 (1968), the Supreme Court opinion stated that "the rule excluding evidence seized in violation of the Fourth Amendment has been recognized as a principal mode of discouraging lawless police conduct"; thus, "its major thrust is a deterrent one ... and experience has taught that it is the only effective deterrent to police misconduct in the criminal context, and that, without it, the constitutional guarantee against unreasonable searches and seizures would be a mere 'form of words.'"

This, to me, seems to argue in favor of what I hope would be obvious: random searches of homes are a gross violation of civil rights, and evidence seized thereby is not admissible in court. Furthermore, I feel this is an argument against the "scope-and-grope" and "pornoscanning" that now routinely accompany efforts to travel by air in the US. However, if the intent of such a search is not to secure admissible evidence for a criminal prosecution, but merely to intimidate the people, then such unconstitutional conduct does indeed serve the interests of those in power; this situation would have to be addressed in a different and more comprehensive manner other than using the exclusionary rule in a criminal case.

The court went on to say:

Yet a rigid and unthinking application of the exclusionary rule, in futile protest against practices which it can never be used effectively to control, may exact a high toll in human injury and frustration of efforts to prevent crime. No judicial opinion can comprehend the protean variety of the street encounter, and we can only judge the facts of the case before us. Nothing we say today is to be taken as indicating approval of police conduct outside the legitimate investigative sphere. Under our decision, courts still retain their traditional responsibility to guard against police conduct which is overbearing or harassing, or which trenches upon personal security without the objective evidentiary justification which the Constitution requires. When such conduct is identified, it must be condemned by the judiciary, and its fruits must be excluded from evidence in criminal trials. And, of course, our approval of legitimate and restrained investigative conduct undertaken on the basis of ample factual justification should in no way discourage the employment of other remedies than the exclusionary rule to curtail abuses for which that sanction may prove inappropriate.

The court upheld that even something portrayed as outside the bounds of the Fourth Amendment, such as a "stop-and-frisk", is indeed a Fourth Amendment seizure and an act that subjects the person to more than a "petty indignity" and went on to say:

We do not retreat from our holdings that the police must, whenever practicable, obtain advance judicial approval of searches and seizures through the warrant procedure ... But we deal here with an entire rubric of police conduct -- necessarily swift action predicated upon the on-the-spot observations of the officer on the beat -- which historically has not been, and, as a practical matter, could not be, subjected to the warrant procedure. Instead, the conduct involved in this case must be tested by the Fourth Amendment's general proscription against unreasonable searches and seizures.

After pointing out the necessity to use a balance of the need to search against the invasion it would entail as the only ready test for reasonableness of a search or seizure, the court held that

in justifying the particular intrusion, the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion. The scheme of the Fourth Amendment becomes meaningful only when it is assured that, at some point, the conduct of those charged with enforcing the laws can be subjected to the more detached, neutral scrutiny of a judge who must evaluate the reasonableness of a particular search or seizure in light of the particular circumstances. And, in making that assessment, it is imperative that the facts be judged against an objective standard: would the facts available to the officer at the moment of the seizure or the search "warrant a man of reasonable caution in the belief" that the action taken was appropriate?"

The court also cautioned that "[a]nything less would invite intrusions upon constitutionally guaranteed rights based on nothing more substantial than inarticulate hunches, a result this Court has consistently refused to sanction."

(Please see the Terry v. Ohio, 392 U.S. 1 (1968) for links and footnotes which I omitted in my quotes.)

The difference is probable cause versus random searches and seizures.

The Supreme Court has upheld, and I agree in principle, that probable cause is not unreasonable, provided it meets certain criteria.

The incendiary allegation against Sheriff Hartman is that he is ready to use random house-to-house searches with essentially no legitimate reason. He has denied this, and I believe him.

In the wake of that Indiana Supreme Court ruling, someone did indeed go fishing in Newton County, Indiana - and it was not the county sheriff!


  1. I’m glad you’re open to continued discussion relating to this issue. The reason I want to talk about this issue is because it’s the paramount issue concerning both the Supreme Court’s decision and the Sheriff’s alleged statements regarding random searches and his subsequent official release.
    One of your statements is that probable cause and hot pursuit are not random. First, the police state term ‘hot pursuit’ is a term made superfluous by modern law enforcement’s increasingly outrageous and always unconstitutional use of the easy multi-use probable cause mantra. Hot pursuit is so mid 20th century. You have no basis that I know of to claim that probable cause is not used randomly. Police engage in random roadblocks every day and all they have to do is say that they smell alcohol or weed, true or not, and Bingo, they now have PC to do anything they want. Thanks to the ISC there’s now nothing to protect us from police using the same methods to create PC to randomly enter our homes. Police morality and honor certainly isn’t stopping them.
    Now about what the 4th amendment does. Fortunately, my understanding of the 4th isn’t erroneous. Yours is. The fourth amendment recognizes that we have the right to be secure in our persons, houses, papers and effects against unreasonable searches and seizures. You seem to have the idea that the 4th amendment is talking about two seperate things: 1) our rights to be secure against unreasonable search and seizure. Apparently, you believe this right is protected by the police? 2) warrants shall be issued upon probable cause. Warrants for what? Warrants to give the police permission to give us baths? No. it’s talking about warrants for search and seizure based upon probable cause determined by a judge or grand jury. (arrest is a seizure) This is the reason why the law in all 50 states requires the police to immediately take an arrested person to see a magistrate to confirm the arrest, or order the citizen to be released. The magistrate determines probable cause that an arrest is justified and issues the arrest warrant. Of course the police (including our trustworthy Hartman) violate this law by usurping the discretion of probable cause and taking the prisoner directly to booking and imprisonment, which is aggravated kidnapping. So you see, police don’t even have the discretion of probable cause to arrest (seize) someone without a judge issuing a warrant.
    No. we have the right to be secure in our persons, houses, etc., …against unreasonable search and seizure, and then the fourth goes on to clearly state how that right is to be secured: By the issuing of a warrant based upon probable cause.
    ‘Exigent circumstances’ is just another police state doctrine intended to violate the 4th and as such is automatically void.

    About the TSA;: Although I'm enjoying this South Pacific beach, I almost can't wait to come back home to place a TSA agent under citizen's arrest.

  2. If a police officer encounters a loaded firearm on a neighborhood playground, does he have authority to seize it, or does he need to get a warrant first?

  3. Such an example is neither search nor seizure as it is is to secure a potentially dangerous item on public property. I believe the example you're looking for is a weapon discovered out in the open on someone's front yard. Under such circumstances it would not be probable cause. It's a neccessity defense of human life or limb. A neccessity defense is an act that would otherwise be illegal, but isn't, because it was done to prevent immediate harm to human life or limb. Like someone jaywalking to prevent a child from getting hit by a car. The cop would be required to return the weapon immediately upon owner request. In this case a cop has no more authority than anyone else, such that a private citizen would also have the same authority to take possession of the weapon in either the park, or the front yard, for safekeeping and later return to the owner. Another example would be if a cop were walking down the street and heard screaming from inside a house. The cop would have the authority to break down the door out of a neccessity defense. If however the cop were to discover that there is no danger to life or limb, he would immediately have to leave upon owner request, or face the immediate consequences of the owner's unalienable right to use force to eject him. Again, a cop has no more authority than a private citizen under neccessity defense, because a private citizen would also be justified in breaking down the door.

  4. So we agree that there are exigencies that permit a cop to act without a warrant. At this point, we are merely haggling over which gnats to screen out.

    Meanwhile, behind us, there is an entire caravan of camels inside the tent.

  5. No. There are no exigencies.

    There is no haggling over which gnats to screen out.

    Exigent circumstances is an automatically void police state mantra used to violate the 4th amendment. Using 'Exigent circumstances' to search or seize property is a criminal act that doesn't become legal because black robed felons say it is.

    A cop who enters property based upon a necessity defence, should he see drugs or illegal weapons, can't seize the drugs or make an arrest, as the cop has no discretion of probable cause. The cop must leave and obtain a warrant by swearing to the events and items to be seized, or persons to be arrested. A judge or grand jury, who has the discretion of probable cause, will then decide if a warrant is justified for search, seizure and/or arrest.

    Is this inconvenient for the cops? Absolutely.

    That's the problem of having a society where the people are the rulers and the cops are the servants. It's far better that a 100 guilty people go free than to have our constitution violated.

    The opposite of that filosophy is exactly what we have today and the result is a lawless nation on the verge of collapse.

    Placing one iota of the discretion of probable cause in the hands of cops is an unacceptable risk in a free society.

  6. By the way. I know how to spell philosophy. I've been spending too much time in South America.

  7. Pacific beaches have a way of doing that. ;)