Note: the below statements should not be considered legal advice. It's really a matter of finding a balance. As in most things, privacy rights tend to swing like a pendulum. Since 9/11, they have swung toward the side of security over civil liberties. Soon enough, it will swing back toward the middle and then over to civil liberties over security. While I am very pro-law enforcement, I am comfortable in saying that proposed legislation along those lines would be onerous and would be unconstitutional on its face. (Because of the requirements of particularity) Just to give you background on this issue, the 4th amendment states that "the rights of the people to be secure in their persons, houses, paper, and effects against unreasonable searches and seizures, shall not be violated.... and no warrants shall be issued, 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." "Any location" is far from particular. This isn't an oversimplification. Case law, plenty of it, outlines the strict demands of the 4th amendment. Probable cause is the belief that a suspect has committed a crime or that fruits, contraband, instrumentalities, or evidence of a crime will be found in a particular location at a particular time. In addition, probable cause has to be proven to the satisfaction of a neutral and detached magistrate for a warrant to be issued. Those are requirements of the 4th amendment. The only way to get around them would be to have a constitutional amendment. The requirements of probable cause and presentation before a magistrate are not onerous. In reality, judge's can be reached at a moments notice to obtain a warrant. At least on the federal side, I have known instances where Judge Coffin was tracked down while on a bus on the way to a soccer game. You can imagine the looks on the kid's face when they saw US Marshalls pull over their bus. Needless to say the warrant was issued. As for probable cause, it exists where the facts and circumstances (which are reasonably trustworthy) are sufficient in themselves to warrant a man of reasonable caution to believe that an offense has been committed. Probable cause is an objective test which depends on what a reasonable police officer has a right to believe under the circumstances. It generally requires individualized suspicion: e.g. suspicion that -this suspect- is guilty of a crime or -this place- harbors contraband, fruits, evidence or instrumentalities of a crime. To give you an idea where on the spectrum probable stands: Beyond a reasonable doubt would be 90% plus sure. Preponderance would be 51%. 44% would be probable cause and 31% would be reasonable suspicion. There are already provisions for warrantless searches. Probable cause is always required. However, courts take a balancing approach in determining how many facts are needed before an officer can have an exigent circumstance that relieves the officer of the warrant requirement. If the crime that the police are investigating and the established probable cause relating to that crime are serious and the intrusion that will occur is relatively minor, the exigencies will be enough. Vale v. LA. Just to go back to your arguments: Firemen aren't going into your house to perform a search or a seizure. You can argue that they are going in to search for people. Yes, that is true, but they are not going in to search for contraband, fruits of a crime, or evidence or the instrumentalities of a crime. Furthermore, fire can be considered an exigent circumstance. If someone calls 911 and says there is a fire in a house the firemen can't just go barging through the door. It has to be reasonable: e.g. there has to be signs of a fire. smoke, smell, or something. Or there has to be consent. A call from the residence would be enough to say that there was consent. Although the aims are noble enough, there is no way that any sort of proposal along those lines would survive any constitutional scrutiny. Remember: the 4th amendment is a floor. The state can give greater protections, but they can never fall below the federal constitutional standard. On Monday, August 26, 2002, at 05:43 PM, Shaun Savage wrote: > I just read an article the the judge the is tring the Microsoft monoply > case is on the (FIAS ??)court. This court reviews the legal aspect of > "secret" warrents. This court has found many abuses of warrants and > violations on citizens rights. As Crispin stated that they only have > the right to look for "the person" and any other crimes HAVE to be > overlooked and NEVER recorded then maybe. Giving up freedom and > privacy for security would make the founding father rotate in their > graves. > Shaun > > > Tao, Greg wrote: >> Hello, >> This is only partially off-topic. While it is not a computer-related >> matter, our group has a lot of law enforcement and criminal prosecution >> experience, so I figure this is about as good a place as any to float >> this >> idea. Let me know what you think of it... >> MOTIVATION >> Maybe some good can come out of the deaths of Ashley Pond and Miranda >> Gaddis, the 2 Oregon City girls whose bodies have been found on the >> property >> previously occupied by Ward Weaver. I have long believed that too >> often our >> laws or the courts' interpretation of the laws does not allow for >> common >> sense measures that could increase public safety while not infringing >> on our >> Constitutional rights. >> PROBLEM STATEMENT >> When responding to abductions/disappearances, law enforcement is >> hindered by >> the stringent requirements for getting search warrants. Today, law >> enforcement needs to convince a judge that probable cause for search >> exists. >> It's something along the lines that you have to explain why you think >> the >> person who is the target of the warrant is somehow involved, what you >> are >> going to search, and what you expect to find. >> PROPOSAL >> Change the law to allow quicker and more flexible searches of people >> and >> property in cases where a person's life may be at risk (e.g. abduction >> or >> disappearance of a child). This change in the law would in effect >> create a >> standing search warrant to look for a missing person at any location of >> interest to law enforcement. Law enforcement would be authorized to >> search >> any part of the property where a human body could be hidden (e.g. crawl >> space), using reasonable search tools and methods (e.g. dogs trained to >> locate human beings or bodies based on a scent provided to them prior >> to the >> commencement of the search). In the case of e-mail, law enforcement >> would >> be authorized to request from the victim's ISP access to email and >> relevant >> logs going back as far as needed for the purpose of aiding in the >> identification of potential persons of interest and material witnesses. >> WOULD A CHANGE IN THE LAW LIKE THIS HAVE SAVED LIVES IN THE OREGON CITY >> CASE? >> Who knows. Hindsight is 20/20, but the proposed change would have >> provided >> the opportunity to search the residences and vehicles of all persons >> with >> whom Ashley Pond was known to associate. Crimes of this nature have >> been >> shown time and time again to involve persons known to the victim, >> usually >> within close proximity. It is possible that early action might have >> prevented her murder, or resulted in the apprehension of the >> perpetrator >> shortly after the fact, thus preventing the murder of Miranda Gaddis. >> This >> is all speculation, but it is based on common sense. >> RATIONALE FOR THE PROPOSAL - WHY THE BENEFITS OUTWEIGH THE COSTS >> This proposal is based on common sense. If a house is burning down, >> firemen >> don't ask permission to enter and save lives. They just enter and save >> lives, cutting through walls if necessary. If we as a society want to >> get >> serious about protecting our children and getting criminals off the >> street, >> we need to get past the over-simplification of the 4th Amendment to the >> Constitution. We don't, after all, consider firemen in violation of >> civil >> rights when they rush into a burning building to save lives. >> Likewise, law >> enforcement must be liberated to be able to conduct reasonable >> searches of >> places of interest in a timely manner when life is on the line and >> minutes >> count. While there are usually no raging fires in cases of abductions, >> there is always a group of individuals that the victim knew, some of >> which >> may be of more interest than others due to things like past >> accusations of >> inappropriate sexual contact. Though personal associations are more >> subtle >> than a burning building, they are nevertheless most always connected to >> abductions that result in murder. >> I welcome your feedback, including any tips about how to get this idea >> refined and submitted for consideration by the US Justice Department, >> the >> Oregon State Legislature, or the Oregon voters. >> Thanks, >> Greg Tao >> greg.tao@private >> Disclaimer: These are my personal views and opinions, not the views and >> opinions of my employer. > > > > T. Kenji Sugahara Chief Operating Officer counterclaim Phone: 541-484-9235 Fax: 541-484-9193
This archive was generated by hypermail 2b30 : Tue Aug 27 2002 - 19:57:50 PDT