Looks llike the 5th Circuit is as wacky as the 9th...

[Selfdfenz]

The Egg,

Well put. The Police State is rushing upon us and there appears to be no thread of shame of the part on anyone in government that they are stealing the freedoms of their fellow man.

How can they care so little for the futures of THEIR children?

One morning we wake up an it'll all be over. Not to far in the future I fear.
Aren't firearms seized anytime there is a police search, crime confirmed or not?

We are serfs, but many don't believe it yet.

S-

 

[spartacus2002]

This is a very bad decision. And, it will be misused by some.

I never saw the "LEO safety" exception to the 4th Amendment when I went to law school....

 

[onerifle]

My question is, will it get to SCOTUS, if it does, will they hear it, and if they DO hear it, will they reverse, or uphold?

 

[FedDC]

This has been to the USSC and has always been supported. The amount of misinformation and just plain incorrect information in this thread is unbelievable. If anyone is interested in actually learning the difference in a protective sweep and a search, feel free to PM me and I would be happy to explain it to anyone that is actually in search of the truth.

Protective sweeps have been on the books for well over a decade. This case was lost before it even started because the sweep was totally constitutionally. Anybody that tells you that EVERY search requires a warrant is either uninformed or lying. There are quite a few exceptions to the warrant requirement such as imminent danger, potential destruction of evidence, search incident to arrest, search at borders, mobile conveyance, consent, and so on. Not all searches require a warrant and if you want to get technical and head into some really theoretical ground, no search REQUIRES a warrant. What is required is Probable Cause...that PC is often supported by a warrant in and today's LE world, it is always wise to get a warrant for liability reasons and so that the judge will admit any evidence seized, but all that is actually needed is PC.

A good example of a search with no warrant would be if an officer sees a bale of Marijuana laying on the back seat of a car that he stopped for speeding...at that time, he would have Probable Cause to believe that there were drugs in the car and could go ahead with the search...without a warrant

 

[romulus]

When I read "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" and then read decisions such as that of the 5th CC, I have to wonder what it is that they read different in wording such "supported by oath or affirmation" and "particularly describing the place to be searched, and the persons or things to be seized" etc. Sounds like the search and the sizure are predicated on a pre-existing warrant issued in turn on a pre-existing oath or affirmation. What am I missing?

The fact there have been bad statutes on the books for decades is pretty irrelevant. Bad statutes, bad decisions, and a now trampled Constitution...

 

[The Real Hawkeye]

Protective sweeps have been on the books for well over a decade. This case was lost before it even started because the sweep was totally constitutionally.

Really? I don't see any mention of it in the Constitution.

Anybody that tells you that EVERY search requires a warrant is either uninformed or lying.

Either that, or they can read the plain words of the Constitution.

There are quite a few exceptions to the warrant requirement such as imminent danger, potential destruction of evidence, search incident to arrest, search at borders, mobile conveyance, consent, and so on.

Funny, I find none of those exceptions in the Constitution.

Not all searches require a warrant and if you want to get technical and head into some really theoretical ground, no search REQUIRES a warrant.

Scary stuff, folks. There are actually a lot of people out there that think like this.

 

[FedDC]

So, you are saying that there are no laws other than the Constitution?


I hate to break this to you, but the constitution is the basis for our laws...but it is not the only law we have. There is this thing called Congress and they pass bills that are then signed by the President and then become laws...

I don't see speed limits in the Constitution...but they are still the law.

 

[WYO]

I am glad to see that some have stated the language of the 4th Amendment. It expresses two related, but nevertheless separate and distinct, thoughts. The first is that the right against unreasonable searches and seizures shall not be violated. This is an absolute standard that applies across the board. The second part sets forth the legal standard for obtaining a warrant, the probable cause standard. It does not state that a warrant is required for any and every search and seizure, and it has not been so interpreted by the courts. The courts have adopted the probable cause standard as a standard for even a warrantless search and seizure, with certain exceptions such as the investigative detention. The courts also have held that a warrantless search or seizure is per se unreasonable unless it fits within a recognized exception to the warrant requirement. There are a number of recognized exceptions to the warrant requirement and each has its own body of case law. That’s just the way it is. It has been that way for a very long time. People who disagree should take it up with Congress, because I submit that, while there is room for disagreement on the picky points, the overall big picture is very well established and consistent with historical analysis and precedent. Even the dissents in Gould recognize the applicability of these principles. One dissenter thought that it was unreasonable under the circumstances but did not otherwise have a problem with the fact that there was no warrant. The most persuasive dissent argues that this particular search was not a recognized exception to the warrant requirement, implicitly agreeing that there are a range of things that are not subject to the warrant requirement. YMMV.

Also, consider the logic of requiring a warrant to make a PC traffic stop for running a red light, forcibly detaining someone and issuing a citation for fighting, or getting a search warrant to seize evidence that is in plain view. Proponents of this rule are arguing in favor of the largest expansion of the judiciary in the history of the world for little if no extra benefit! Carried to its furthest extreme, to make everyone happy we could hire a judge for every cop who gets hired, who could ride along and give judicial yes or no answers on everything. Would that make a world a better place? Would that provide a measurable increase in “justice� Are taxpayers prepared to foot the bill?

I think we have beat this horse to death. The issues have been pretty well defined for everyone to decide where they stand. Best regards to all.

 

[Nighthawk]

I'm all for the safety of our peace officers. After all, every cop is a person. However, I'm all for the safety of the people of this country.

I find it equally outrageous when a dangerous criminal gets off on some legal technicality as when the police overstep their boundries. In both cases, it's the law-abiding citizenry of this country who pay a very dear price.

The problem I see with this ruling is that it opens the door for a very small step away from the constitutional intent. Each small step can be justified, it can seem logical and reasonable and totally non-threatening. But many small steps can result in a long journey. How many small steps will we tolorate? How many small steps will we allow before we start to measure them as a cumulitive movement away from the constitutional intent? At what point do we say the line has been crossed?

Whether you're against this ruling or don't see anything wrong with it, don't get tunnel vision. Look at the policies of this country as a whole before you make up your mind.

 

[The Real Hawkeye]

So, you are saying that there are no laws other than the Constitution?

The Constitution is the highest law in the land. That means that no other law may contradict it, and no other law may increase the power of government, and no other law may diminish the rights and protections of the people against government intrusion. If another law does that, that law is illegal, i.e., null and void. No "exceptions" to any Constitutional rights and protections may be merely legislated, or ruled into existence by the courts. Exceptions to Constitutional rights and protections may come from only one source, that is a Constitutional Amendment, lawfully arrived at according to the appropriate Constitutional process. Courts and legislators are not authorized by the Constitution to carve out exceptions to our rights and protections (That would be like telling the fox that he can make the rules about when its ok for him to enter the hen house and what he's allowed to do there). If they do, they are behaving in a lawless and treasonous manner, and should be dealt with accordingly.

 

[The Real Hawkeye]

The courts have adopted the probable cause standard as a standard for even a warrantless search and seizure, with certain exceptions such as the investigative detention. The courts also have held that a warrantless search or seizure is per se unreasonable unless it fits within a recognized exception to the warrant requirement. There are a number of recognized exceptions to the warrant requirement and each has its own body of case law.

WYO, see my post above. It is my answer to you as well.

 

[Selfdfenz]

"protective sweep and a search'

Give the LA decision the endpoint is the same.
Cops in you place 24/7/365.

Only the excuse changes.

IMHO the term "protective sweep" is BS. Open ticket for abuse, and so it will come to be. Hitler would be proud.

S-

 

[dustind]

If an officer sees drugs on the seat, and searches. Can he legally confiscate any non drug items (guns, stolen stuff, etc) he finds?

 

[romulus]

So, you are saying that there are no laws other than the Constitution?


I hate to break this to you, but the constitution is the basis for our laws...but it is not the only law we have. There is this thing called Congress and they pass bills that are then signed by the President and then become laws...

I don't see speed limits in the Constitution...but they are still the law.

Are you saying the Congress is free to pass a law in direct contravention of the Constitution? Or that judges, like those on the 5th Circuit, are free to adjudicate outside the framework of the Constitution and by fiat nullify a core amendment - the fourth one in the Bill of Rights? The de facto abrogation of the Constitutional protection against unreasonable searches and seizures is akin to an addendum to the US Highway Code?

What kind of nonsense is this? You should be ashamed for that suggestion...