DC asking citizens to VOLUNTEER to a search

[ConstitutionCowboy]

Not true. The Constitution gives the United States Supreme Court the power to interpret the Constitution and the law. ...

Oh, good! Maybe YOU can show it to me in the Constitution. Many claim this is true, but no one has ever been able to show me where the Constitution gives the Court power to interpret the Constitution.

Show me.

I don't want a ruling from the Court, I want to see it in the Constitution.

The U.S. Supreme Court has stated that a search conducted pursuant to lawfully given consent is an exception to the warrant and probable cause requirements of the Fourth Amendment.

I don't see this anywhere in the Constitution, either.

Woody

The lack of this knowledge makes me feel like a lamb being led to the slaughter and the only choice I have is which butcher to select. B.E. Wood

 

[Wineoceros]

The Fourth is quite specific about searches. In order to be secure from unreasonable searches, it is necessary to have probable cause, supported by oath or affirmation, and etc., and no warrant shall issue without such. No warrant; no search.

Your "No warrant; no search" conclusion does not follow from your previous statement, nor is it supported by the text of Amendment IV. Let's try breaking it down:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated"

OK. So no "unreasonable" searches (nor seizures). What's an "unreasonable" search? Sounds like a judement call. That's probably one reason that we have courts.

, 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."

OK. Any warrants issued must be the result of probable cause, etc. But where is this "no warrant, no search" prohibition you speak of?

 

[Wineoceros]

Oh, good! Maybe YOU can show it to me in the Constitution. Many claim this is true, but no one has ever been able to show me where the Constitution gives the Court power to interpret the Constitution.

Show me.

I don't want a ruling from the Court, I want to see it in the Constitution.

Article III, Section 2:

The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states;--between a state and citizens of another state;--between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.

So, the judiciary (including SCOTUS) is charged with adjudicating "all cases, in law and equity, arising under this Constitution". Since legal adjudication inherently and unaviodably involves interpreting the law, and since the U.S. Constitution is a legal document (the supreme law of the land, no less), how does one arrive at a judgement on a case involving a constitutional dispute without interpreting the Constitution, just as one would need to interpret any other law (or set of laws)?

 

[ConstitutionCowboy]

What makes a search, or assures that a search is not unreasonable is the issuance of a warrant with probable cause supported by an oath or affirmation.

More on this tonight if the thread doesn't get closed.

Woody

 

[Wineoceros]

What makes a search, or assures that a search is not unreasonable is the issuance of a warrant with probable cause supported by an oath or affirmation.

The amendment's language doesn't say that. So what is your basis for that assertion?

 

[ctdonath]

The language is plain, albeit antiquated. UNREASONABLE searches are prohibited; a warrant expressing probable cause, supported by oath or affirmation, and detailing who/what/where is being searched, makes/assures it REASONABLE and thus Constitutional.

 

[Wineoceros]

The language is plain, albeit antiquated. UNREASONABLE searches are prohibited; a warrant expressing probable cause, supported by oath or affirmation, and detailing who/what/where is being searched, makes/assures it REASONABLE and thus Constitutional.

I think you're jumping through some sort of logical wormhole here. Just because a warrant ensures (more specifically, a warrant issued in the manner described) that a search is reasonable, it does not logically follow that the lack of a warrant makes a search inherently unreasonable.

Your claim that the phrase describing the criteria that warrants must satisfy somehow means that a warrant and ONLY a warrant can make a search reasonable simply does not withstand even the most basic linguistic or logical analysis. It's almost as bad as claiming that 2A says that the RKBA is described as a militia duty-dependant right.

Think of it this way. I tell you:

"This is a gasoline-only engine, and any unleaded gasoline used should have an octane rating of 90 or greater."

What can we determine from this? Two things:

1) The only fuel that should be used is gasoline.
2) Unleaded gasoline with an octane rating of at least 90 is acceptable for use as fuel in this engine.

Can we further logically deduce that *only* unleaded gasoline should be used in this engine? No, we cannot.

 

[GuyWithQuestions]

You can revoke your consent to voluntary search at any time, with a few exceptions

If someone says, "Hey coppers! You can come search through my vehicle for marijuana!" Or "You can come search through my house for illegal drugs and firearms!", how's that unreasonable search? If someone gives their voluntary consent and the police aren't forcing them to do anything? If you say no because they don't have a warrant, they can't use that as probable cause of guilt in getting a warrant. Wikipedia, under consent searches, also says that in most cases once you give your consent for consent searches, you can tell them to stop anytime during the search and they have to stop, although there are a few exceptions. It uses the FBI .gov website as its reference. The two exceptions are airport security screening, it was ruled that once your bag enters the x-ray and you walk through the magnetometer, you can't withdraw your voluntary consent. The other exception is if you're visiting a prison and searching has already begun. Apparently it sounds like they had problems with people smuggling things into airports and prisons seeing if they could get away with it. The courts also ruled that when you say that although you gave your voluntary consent to be searched but then decided to change your mind, you have to explicitly say so, giving hints or acting impatient doesn't count. That's only if you had already given your voluntary consent, but then changed your mind. And if they just found some illegal drugs, then it's too late to tell them to stop, you're screwed. During the search, the officer may develop probable cause to make it so you can't revoke your voluntary consent; however, United States v. Fuentes, the court found the “mere refusal to consent to a stop or search does not give rise to reasonable suspicion or probable cause.” So the best thing to do if you live in D.C. is just to say you don't give your consent unless they have a search warrant. Legally, they can't use that as a reason for you to be seen as guilty.

 

[Cuda71]

Does anyone have any information on how the program went in Boston? My understanding is it began in November of last year, so there must be some information. Is it still running or did they abandon it?

Why do I get the feeling that the D.C. searches will end up looking like a buyback program. A few months into the program there will be tables lined up for the media with hundreds of "illegal" guns that supposedly "voluntarily" came out of peoples homes. Of course there must be a Tec-9 in there somewhere.

Seriously, I see way too many situations where things could go wrong with such a program:

What if officers get a call, then arrive at the property and no one is home? Will they just enter, then state afterwards that they received a tip about "dangerous, illegal weapons that posed a threat" in the home?

What if a child answers the door, or someone too young to give consent? Will the officers simply walk away and "leave a minor alone in a house with firearms"?

What if the person who answers the door consents, but isn't the property owner?

What if the tenant of a rented property consents? Does the landlord also need to consent, or will the police give amnesty to him as well for any of his property or any zoning laws or code violations they might "stumble across".

Hopefully a number of lawsuits brought against the city in the wake of such searches will force them to abandon the plan as ineffective, assuming that it's deemed constitutional in the first place.

 

[GuyWithQuestions]

Reminds me of a Simpsons episode

Seriously, I see way too many situations where things could go wrong with such a program:

Personally, I see the people who consent to being searched in D.C. as being similar to that one Simpsons Episode where those bullies were like, "Wallet Inspector!" The kids handed him their wallets. "Hey, you're not the wallet inspector!" Bully, "I can't believe they fell for that!"

 

[takhtakaal]

Just imagine if the person at the front door says yes, and the person upstairs at their own bedroom door says no.

Lots and lots of headaches and heartaches.

 

[ctdonath]

I think you're jumping through some sort of logical wormhole here. Just because a warrant ensures (more specifically, a warrant issued in the manner described) that a search is reasonable, it does not logically follow that the lack of a warrant makes a search inherently unreasonable.

Given the point of this thread (which should be presumed relevant in discussions thereon), it is UNREASONABLE to walk up to arbitrary homes, knock, and while wearing a uniform & weapon and while operating in teams (i.e.: acting under color of law with implied threat of force for non-compliance) say "hey, we want to search your house for contraband ... oh, don't worry, we won't arrest you, we'll just confiscate it" when there is absolutely no reason to do so in that specific instance.

"Reasonable" has as its root "reason". They're searching homes for contraband, with no reason to believe that specific house has specific contraband or involves any specific crime (and the term "specific" even being applied as loosely as possible).

Nobody, when explaining in more detail than you want to read on a discussion thread, will argue that a warrant MUST, ABSOLUTELY be in-hand for absolutely every search. There are, of course, situations where a search is reasonable and there is insufficient time to get a warrant. We use warrants whenever possible to have documented assurance that there is indeed a good reason for the search. But since you're demanding such nit-picking precision in the discussion, I will observe the obvious: when there is not time to get a formal warrant, and there is reason to search, the search is justified - just expect the target thereof to demand judicial review to confirm that the search was "reasonable".

 

[Wineoceros]

Given the point of this thread (which should be presumed relevant in discussions thereon), it is UNREASONABLE to walk up to arbitrary homes, knock, and while wearing a uniform & weapon and while operating in teams (i.e.: acting under color of law with implied threat of force for non-compliance) say "hey, we want to search your house for contraband ... oh, don't worry, we won't arrest you, we'll just confiscate it" when there is absolutely no reason to do so in that specific instance.

"Reasonable" has as its root "reason". They're searching homes for contraband, with no reason to believe that specific house has specific contraband or involves any specific crime (and the term "specific" even being applied as loosely as possible).

No argument there.

Nobody, when explaining in more detail than you want to read on a discussion thread, will argue that a warrant MUST, ABSOLUTELY be in-hand for absolutely every search.

Then ConstitutionCowboy must be this "nobody" you allude to, as he has most certainly made that very argument multiple times, as he did here, which is what I replied to. Given that, your response to my point can only be interpreted as meaning that a warrant is required for a search to be "reasonable". Either that's always true, or there are exceptions. You can't have it both ways.

 

[ctdonath]

Sigh...here we go again...

What if officers get a call, then arrive at the property and no one is home? Will they just enter, then state afterwards that they received a tip about "dangerous, illegal weapons that posed a threat" in the home?

If there is nobody home, then there is no hurry - is there?
Post a cop or two to watch the place, while another goes to a judge to present the evidence. If the evidence is good enough to convince the judge that the search is "reasonable", then the issue is resolved and they can go search promptly. If it's not good enough for the judge, then it's "unreasonable" and they're not allowed to search.

What if a child answers the door, or someone too young to give consent? Will the officers simply walk away and "leave a minor alone in a house with firearms"?

If the evidence is enough to convince a judge - and an experienced cop should have a good sense of whether it is or not - they can act accordingly to search.
You're also complicating the question with the red herring of whether a child should be left home alone at all. That's a whole different discussion.

What if the person who answers the door consents, but isn't the property owner?

Then perhaps they can invite the person to step out, while a warrant is obtained. So long as there's time to get the issue documented with a judge's signature, do so. What's the rush?

What if the tenant of a rented property consents?

The tenant, for most legal purposes, has the authority to grant permission.

Does the landlord also need to consent,

Only if the search involves an area not otherwise under the authority of a tenant.

or will the police give amnesty to him as well for any of his property or any zoning laws or code violations they might "stumble across".

Well, ya see, that's an under-discussed part of this whole issue: while a verbal "we won't prosecute" is given, courts have broadly given consent to cops to LIE pursuant to their activities, and have also broadly given consent to cops to act on any other illegalities they reasonably stumble across pursuant to their reasonable search (hence the Constitution's insistence that a warrant be to search a particular place for particular things).


THINK about the issue. Don't just make up wild/scary-sounding stuff and go "oh, but what about THIS that I haven't really thought about?" It all revolves around what constitutes a REASONABLE search: why is a search being done? for what? where? when? why now? what's the rush? is there time to convince a judge it's reasonable BEFORE searching?

 

[D94R]

Guns making the house's unsafe? Really? Never thought about that,... I double checked though just to be sure and my guns aren't hopping around just itching to eject bullets at anyone and everyone who enters my house.

That damned toaster on the other hand has been giving me the stink eye lately.

 

[sacp81170a]

Just imagine if the person at the front door says yes, and the person upstairs at their own bedroom door says no.

Actually, if the person upstairs at their own bedroom door isn't a minor, they have the right to say no.

I double checked though just to be sure and my guns aren't hopping around just itching to eject bullets at anyone and everyone who enters my house.

Well, mine are, trust me. No, seriously, no one should ever try to enter my house without my permission. I'm not sure I could control 'em. Really.

 

[ConstitutionCowboy]

ctdonath said it in a nutshell. The following is the long version:

Let's see, the Fourth Amendment begins with, "The right of the people to be secure yadda yadda against unreasonable searches..." Hmm, interesting choice of using that word "against", don't you think? Why didn't the Founding Fathers use the word "from" instead? "Against" means in opposition to. (The other definitions don't fit the context.) So, plugging in the definition of "against", we get, "The right of the people to be secure yadda yadda in opposition to unreasonable searches...". If "from" were used, the only closely suitable definition of "from" is out of the possibility or use of and it doesn't work contextually. We'd have, "The right of the people to be secure yadda yadda out of the possibility or use of unreasonable searches..." . It just doesn't flow.

At any rate, I must apologize for using the word "from" in my dissertations.

"Against" is a preposition and the object of the preposition is "searches" which in turn is modified by the adjective "unreasonable". This is an adjective phrase linked to the adjective phrase "to be secure", which in turn specifies which right is being addressed in the Amendment, which is the "Right to be secure in their persons,houses, papers and effects against unreasonable searches and seizures." That is the name of the right. That is what is protected. The amendment goes on to specify how it shall be protected by saying it shall not be violated. It doesn't protect a right to be secure from reasonable searches and seizures, however. Now, we need something to differentiate between what might be a reasonable search and seizure and what is not. The Founding Fathers included what shall determine the difference between what is reasonable and what is not. It's called "probable cause" supported by oath or affirmation, and the Founding Fathers included describing the place to be searched and the persons or things to be seized to make a search and seizure reasonable. That means NO FISHING EXPEDITIONS !! If the place to be searched and the items or persons to be seized are not specified, and there is no probable cause(you need all of it), the search is unwarranted, unwarrantable, and otherwise unconstitutional in spite of what the Court has said.

Also note that the Founding Fathers joined what is protected and what determines that which is not protected with the conjunction "and". The amendment is one sentence. It says what is protected and specifies the standard that must be met and the process and procedures that must be followed to pursue that which is not protected. It doesn't include any alternatives such as asking persons if they will consent to a search without an appropriately issued warrant. Don't forget the Tenth Amendment or how the Fourteenth Amendment ties the Fourth to the states(for those who believe the Bill of Rights didn't apply to the states before the Fourteenth). There is no power granted to the Union to ask a person to forgo their Fourth Amendment protected right, and the several states are as bound to the procedures in the Fourth as is the Union. There is nothing in the Fourth Amendment excepting the several states from the prohibition against unreasonable searches and seizures.

The argument that granting permission for a search to be conducted sans a warrant still does not meet the requirements government must adhere to. The Place to be searched must still be specified. The items or persons to be seized must still be specified. Probable cause must still be met and supported by oath or affirmation.

Woody

 

[ConstitutionCowboy]

So, the judiciary (including SCOTUS) is charged with adjudicating "all cases, in law and equity, arising under this Constitution". Since legal adjudication inherently and unaviodably involves interpreting the law, and since the U.S. Constitution is a legal document (the supreme law of the land, no less), how does one arrive at a judgement on a case involving a constitutional dispute without interpreting the Constitution, just as one would need to interpret any other law (or set of laws)?

Note the word "under"? The Constitution is not under itself. It is the top. The Court needn't "interpret" the Constitution to determine whether or not a certain law is constitutional. The interpretation is done on the law to see if it comports to the Constitution. The Court is not above the Constitution. The Court abides the Constitution. How can the Constitution be the Supreme Law of the Land if it can be interpreted or construed by anyone under it? It isn't supreme if it can be interpreted. If the Supreme Court determined the supreme law of the land, we wouldn't need a constitution.

Woody

 

[Wineoceros]

Note the word "under"? The Constitution is not under itself. It is the top.

You have a keen grasp of both the obvious as well as the already stated.

The Court needn't "interpret" the Constitution to determine whether or not a certain law is constitutional. The interpretation is done on the law to see if it comports to the Constitution.

You seem terrible confused. To "interpret" in this context is simply to determine the meaning of. English, like all natural languages, is an imprecise tool. As such its meaning, even as crafted by those most skilled in its use, is more often than not subject to at least some degree of interpretation. This is especially true of something like the U.S. Constitution, which is quite economical with its verbiage, and not chock-full of a lot of detailed definitions, explanations and what not.

Now, when SCOTUS accepts a case consisting of a challenge to a given statute that has been made on constitutional grounds, the court is generally faced with the task of determining if the challenged law is in compliance with the relevant portion(s) of the Constitution. In order to do that the court must quite often figure out the precise meaning of the text contained in said portion(s) within the context of the challenged statute. This is because, owing to the aforementioned economy of verbiage, the text being evaluated may not be completely clear and unambiguous on the matter at hand. In other words, the court "interprets" the meaning of the text for this purpose.

The Court is not above the Constitution. The Court abides the Constitution.

No one has said otherwise.

How can the Constitution be the Supreme Law of the Land if it can be interpreted or construed by anyone under it?

I realize that you think you're making some deep philosophical point here, but in fact you're simply offering a nonsensical argument. The men who authored the Constitution were also "under it" once it was ratified, but no reasonable person would claim that they could not interpret its meaning. The need and ability to perform such interpretation does not mean that the interpreter is somehow "above" the law being interpreted.

It isn't supreme if it can be interpreted. If the Supreme Court determined the supreme law of the land, we wouldn't need a constitution.

Do you really not grasp the absurd nature of your argument? The Constitution, like all man-made law, was written by flawed mortals. As such it is an inherently imperfect expression of the intent of the authors. If the language describing laws was perfectly clear, unambiguous and not subject to any interpretation then we would have no need of any judges at all.

You've taken your rationalization to silly extremes.

And your long-winded diatribe on search and seizure is just as silly, and astoundingly convoluted to boot.

 

[Wineoceros]

The argument that granting permission for a search to be conducted sans a warrant still does not meet the requirements government must adhere to. The Place to be searched must still be specified. The items or persons to be seized must still be specified. Probable cause must still be met and supported by oath or affirmation.

You're jumping through a great many hoops here just to mangle and horribly misinterpret a simple bit of English. The requirements you describe above are, in the language of the 4th, restrictions on *warrants*, not on searches themselves. There are two separate (but related) restrictions described by the 4th:

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 conjuction "and" separates these two restrictions on state power with regard to search and seizure, and the verbiage you're going on about applies directly to the latter, and only indirectly to the former...and then only in case in which a warrant is the only "reasonable" path to a search or seizure. Otherwise there would have been no purpose for including the word "unreasonable" in the first part.

 

[paintballdude902]

this is facism!!!

what happens if you say no?

i would bet that they take down ur info and keep a closer watch on u this is outragous

 

[cassandrasdaddy]

if they were capable of keeping a closer watch in the highlands there wouldn't be stop and cop curb side service on every corner. this is a lame photo op hand job. i hope they get video i bet the cops are real enthused about this one if anyone can post the question on one of the cop boards. i'd love their unexpurgated opinions

 

[GuyWithQuestions]

this is facism!!!

what happens if you say no?

i would bet that they take down ur info and keep a closer watch on u this is outragous

The U.S. Supreme Court said that then they cannot use that as a probable cause for guilt, if you refuse to be searched in a voluntary consent search. That's what you should say if you live in D.C. and they ask if they can go through your home, say no!

 

[jrfoxx]

I don't think they care about the drugs.

And here's what I think is the scam here, and what will get a LOT of people who allow the searches arrested.They say they are looking for illegal guns, and if they find one that WASNT used in a crime, they wont charge you, but, what happens if they DO find some drugs, or other illeagl items during the search? they never said you'd get amnesty for ANYTHING except guns. So, my guess, is if they find something else thats illegal, you get arrested, and the court will allow whatever they found, since you volunteerd for the search.And since a handgun is small enough to be pretty much anywhere, they will be allowed look pretty much anywhere, so the drugs, or whatever they find will be from a legit search, since it was found somelace a gun COULD have been, and they just happened to find it, so it's not like they lied to get the search allowed (not that it would mater anwas, the courts have said cops can lie to you all they want to get you to do what they want).In that vain, whats to stop them from charging you for a gun they find anyway? unless they sign a legally binding contract with you before the search that says they wont charge you, they can easily just go back on thier word, and the courts would 99.9% likely (IMHO), say it was ok that they lied about the amnesty.But again, they dont even need to do that if they find someting else to charge you with that ey didnt proise amnesty for.Enjoy prison folks.

This may sund a little in foil hattish, but I realy, really dont ink they'll just ignore anything else they find and only confiscte it and let you off the hook.I FULLY belive they'll hammer you as hard as they can for it.The part about going back on thier word on the gun amnesty may be a conspiracy theory stretch,but again,without signed contracts, and the courts having said lying to get searches, informaion, etc is ok, there really isnt anything stopping them, except thier integrity, which, I'm sory, but I dont see a lot of evidence there's much of that in D.C., especially when it comes to guns. Wouldnt be surpised at all, thats for sre.

 

[cassandrasdaddy]

they don't have enough jail space to arrest folks in the highlands who have dope. let me give you a hint its like chris rock says martin luther king ave runs through the highlands