What You Need To Know About Search And Seizure but Were Afraid to Ask by Amie Gibbons

What You Need To Know About Search And Seizure but Were Afraid to Ask by Amie Gibbons

*There are some things every American should know.  Your rights when it comes to search and seizure definitely make the list, especially considering cases that have been making lawyers flinch all over the country, like the FBI Apple debacle.  Knowing your rights may not protect you from the government violating them, but it could, and at the very least, you’ll know when to take it to court.*

(As always, this isn’t to be taken as any kind of legal advice, just some very simplified basics for the lay person, and a little bit of ranting lawyer.)

We’ve all seen Law and Order, right?  Well, they don’t always get stuff right but they are usually pretty on about cops having to dance around the system to get to look through your shit.  And it’s this big pain and always seems like the 4th amendment and the getting a warrant thing is there to get in the cops’ way, right?

If there is one of my legal posts I want you to remember, it’s this one.  Because the 4th amendment isn’t there to get in the cops’ way or to be a stupid bureaucratic hoop to jump through.

The 4th amendment and the warrant are there to protect your rights.

We’ll start from the top, the 4th Amendment:

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.

I can not even begin to describe the massive amounts of legal scholarship there is on this issue, the many thousands of cases picking at every little point possible to argue, and the millions of hours lawyers and law students have debated issues around this amendment.  So this will be a bare bones outline of the topic, and there are many others on my blog that delve deeper.

When analyzing the 4th amendment, we have 4 basic steps we go through (4 for 4, the OCD in me loves that symmetry).

  1. To invoke the 4th amendment, what do you need first?

That’s right, government conduct.  The Constitution only protects you from the government violating your rights.  Your boyfriend breaking in and reading your diary is not a Constitutional issue. And someone shooting and killing you to keep you from raping them doesn’t violate your sixth amendment right to a fair and speedy trial (Do not get me started on that retard in the Puffington Post who said this!)

And here’s the first point we debate in every criminal procedure class, what counts as government conduct?  Then we get into issue of somebody stealing stuff from someone’s house and giving it to the cops.  Does that count as government involvement?  Well, (every lawyer’s favorite answer) it depends.  Basically it comes down to specific case law in your jurisdiction and whether the judge believes in the end that the person acted alone or under a request from the police.

  1. Is there a reasonable expectation of privacy on your part?  If the following suggests yes, move to step 3.

This first asks, was it your place that was violated?  Your house, car, apartment, private jet, body.  Was it yours?  If not, if it was something like a friend’s place, were you crashing there?  This gets messy but in TN at least, if you were an overnight guest at somebody’s place, you have some reasonable expectation of privacy.  As in, the cops come knocking on the door and ask to search, you can say no.

And the next question is, did you hold whatever it was out to the public?  Was it in the garbage, an open field out back, or sitting on the porch?  Or was it something like a smell or the color of the car?  If it’s held out to the public, as in anyone not a cop could see without trespassing (basically, but again, this gets a hell of a lot more complicated), then the cops didn’t violate the 4th amendment by observing it.

  1. Did the police have a valid search warrant?

They can search through your stuff with a search warrant.  That’s what the warrant is there for.  But, to be valid, it must i) be based upon probable cause (reasonable grounds to believe a legitimate item for seizure is located in a particular place) and ii) describe with particularity the person and places to be searched.  Again, it’s a lot more involved (especially in debating what counts for probably cause) but this is the basic idea.  So if they didn’t have a valid warrant, you go onto step 4.

  1. And this is the big kahuna step, it’s the one you see pop up in court and on TV most often.  There wasn’t a warrant, there was a violation of a reasonable expectation of privacy by the government, and the government is trying to keep the evidence in by arguing an exception.

And there are exceptions to the search and seizure requires a warrant rule?  Yep.  And you know why?  Because the 4th amendment does not actually require a warrant!  Nope, go and read it again.  It has two parts.  Search and seizure can’t be unreasonable.  There’s a Supreme Court case that says it’s unreasonable without a warrant unless there’s one of the exceptions.

As for what the exceptions are?  Those are different posts because it’s waaaaaay too involved and this one’s already pretty long.  Let’s just say, there’s a lot of them and a lot of ways to argue you are or are not in one.  This is where Prosecutors and Criminal Defense Attorneys earn their paychecks.

The 4th amendment, it’s the big one.

And why is that?  Why is it such a big deal?  Because if the court finds that the evidence was found in violation of the 4th amendment, the evidence gets tossed out.  Again, there’s exceptions, like if they can show they would’ve inevitably discovered the same evidence, but usually, violating rights loses cops the evidence.  It’s called the exclusionary rule.

And I HATE this rule!

There’s a long rant that goes with it, but the short version is: Since the rule only takes out the evidence in a trial, it punishes the system (and not the cops who did the violating in the first place) by letting the criminal go free, but provides NO remedy whenever it’s an innocent citizen whose rights were violated because that citizen is not on trial.  There was no evidence to find and to therefore keep out of a trial.

The idea is that cops will be afraid if they find something that it will then be tossed out, and therefore they don’t violate anybody’s rights.  We wouldn’t have so many freaking cases on this if it were true, but hey.

Moral of the story?  The law isn’t perfect, neither are cops, and if you want your rights protected you’ve got to know what they are.  You have the right to tell a cop asking you if he can search you or your place no.  If he then searches anyway, well, you might have something to hide that you can later try to get tossed out or you might have a cause to sue.  But that’s another post too.

(If you like a little law in your fiction, check out my latest novel about silly psychic Ariana Ryder, Psycho (and Psychic) Games.)

 

293 responses to “What You Need To Know About Search And Seizure but Were Afraid to Ask by Amie Gibbons

  1. Knowing your rights may not protect you from the government violating them

    The purpose of knowing one’s rights has less to do with protecting them from governmental violation than it has to do with your inadvertently waiving them.

    • …your inadvertently waiving them.

      Excellent point! Too many people do give away rights when they need not, due to ignorance. In all arenas, not merely in that of gov’t vs. the individual.

    • Agreed, the article should have mentioned the biggest exception to the 4th amendment that cops relying upon more than anything else. In a word, consent. If you give them permission to search, the fact the stop was unreasonable becomes unreviewable. If you give them permission, they don’t need a warrant of any kind. Which is why the correct answer to “Can I come inside and look?” to a police officer (but not necessarily DCFS or your local equivalent) is a question: “Do you have a warrant?”

  2. Paul (Drak Bibliophile) Howard

    Basically it comes down to specific case law in your jurisdiction and whether the judge believes in the end that the person acted alone or under a request from the police.

    The above came up in The Law of Superheroes by James Daily and Ryan Davidson regarding Batman’s actions.

    If it is well known that Batman works with the Gotham City Police, (IE he’s an agent of the police), then if Batman steals some evidence and gives it to the police, then the Judge will treat it as the same as if the police “stole” the evidence. 😀

    • Hmm. Was there anything like this?

      “Superman is a member of the public.”

      “Superman could easily observe the stash of stolen goods in your basement.”

      “Therefore, we can introduce the stolen goods as evidence, though we had no warrant.”

      • Paul (Drak Bibliophile) Howard

        I’m not a lawyer but I suspect that the defense could reasonably use the following.

        1) Superman is known to work with the Metropolis Police Department.

        2) Superman is known to have control over when he uses his “X-Ray Vision” and when he doesn’t use his “X-Ray Vision”

        3) Thus when he saw the stolen goods in the criminal’s basement, his had chosen to use his “X-Ray Vision” to violate the criminal’s privacy.

        4) Since Superman has acted as an agent of the Police Department, then the Judge should treat this as an “illegal search and seizure”.

        Of course, if Superman “hears” a crime in progress and uses his “telescopic vision” to see what’s happening, then “privacy concerns” aren’t as relevant.

        Of course, Superman taking the witness stand might be interesting as he wouldn’t be doing so as Clark Kent.

        Still, since Superman doesn’t use a mask, it would be better than if a masked Batman took the witness stand. 👿

        • scott2harrison

          There was an actual case quite like this some time ago. The police used an infra-red camera to detect hot lights on the other side of a solid wall, then used this data to get a warrant to search for pot. The evidence was thrown out because people don’t think of infra-red cameras when they are deciding if they have a reasonable expectation of privacy or not, therefore the victims had a reasonable expectation of privacy even though the camera could see right through their house wall.

    • Jeff Gauch

      But I believe Batman’s MO in these cases is to steal/abduct the evidence and then leave it anonymously where the police can easily find it. So wouldn’t the defense have to first prove that it was taken by Batman and that Batman was acting as an agent for the police?

      • Paul (Drak Bibliophile) Howard

        Perhaps and I haven’t been keeping up with Batman.

        But Batman was in more recent years shown as “working with the police” and shown as “openly providing evidence” to the police.

        IE The evidence wasn’t provided anonymously.

        On the other hand, in the first Wearing The Cape novel, one super-powered vigilante was quietly protecting certain neighborhoods (generally not making the police take notice of her actions) but was also providing anonymous information to the local police.

        So in those cases, she was definitely not acting as an agent of the police.

        Later, her “cover” was blown so she has to act in a legitimate manner according to the rules established in that world for superhero actions.

        Still, she has been known to visit her former neighborhoods to “put a bite” into crime. 😈

        • snelson134

          Batman seems to work in two modes, Mode 1, he comes across a crime in progress, and acts as any good citizen should and employs his skills and weapons to stop the crooks and leave them for the cops to clean up. Hard to argue you’re innocent when you’re sitting tied up in the middle of a busted in jewelry store with the bag of loot on the ground next to you. 😎
          Batman is assisted in this one by the tendency of Gotham master villains to supervise their minions crimes in person… 😎

          Then there’s mode 2, where he actually comes across the crimes in the planning stages via eavesdropping, clandestine breaking and entering, encouraging villains to spontaneously repent and confess… 😉

          In those cases, he’s been shot at by street cops; he certainly doesn’t have an official relationship with the Gotham PD, and the phrase “prosecutorial discretion” covers a multitude of sins.

    • I’ve had people unable to fathom that if a private college runs kangaroo courts at the behest of the Department of Education, due process questions arise.

      • That’s actually scary, because then the Department of Education is overstepping its’ bounds and going well into the realms of the branch of the Courts.

        • Paul Koning

          The Department of Education is overstepping its Constitutional bounds simply by existing. So the fact that they would trample the Constitution in other ways is hardly a surprise.

      • Of course, the Department of Education’s position is that the college is not running the kangaroo court on their behest but as a private non-judicial resolution with respect to a contractual matter between the college and the student. The fact that Dep’t of Education has mandated such courts to resolve Title IX issues is entirely beside the point — and I’m not aware of case law to the contrary (yet). Most of those cases have settled.

        See FIRE’s guide – “Private universities are not legally required to promise fair procedures to their students. However, nearly all universities have student handbooks and manuals that set out rules and standards for their student judicial systems. Courts in many states have held that these rules and standards form a contract of sorts, and that universities must live up to them in at least a general way.
        [Jump to section on sexual assaults]
        Title IX’s mandate of a “prompt and equitable” hearing in order for the victim to seek vindication should ensure—at least in theory—fair treatment for the accused as well. After all, an “equitable” procedure by definition must be a fair one. The requirement of fair procedures confers rights upon both parties in claims of sexual harassment or assault, and OCR has made clear that rights afforded to the complainant must also be afforded to the accused, and vice-versa. … However, this area of the law is in dramatic flux.”
        https://www.thefire.org/fire-guides/fires-guide-to-due-process-and-campus-justice/fires-guide-to-due-process-and-fair-procedure-on-campus-full-text

        • Of course it’s their position. People shameless enough to do it are shameless enough to feign that they are not.

  3. I believe that one of the exclusions for the search warrant is immediate pursuit—as in, someone was seen in the commission of a crime and was pursued to the private residence. They got a guy who did a hit-and-run on our car that way—he’d left a license plate behind, and they trailed him to his house, and when he opened the door drunk, they were able to do a breathalyzer test on him and prove there was no way he could have been sober half an hour before.

    They called us up and told us that since it was his third DUI, he had a choice of jail time or jail time.

    (Yes, breathalyzer tests can fall under the 4th, but if someone is acting drunk, they have “reasonable suspicion.”)

    • This reminds me of that vegan woman who ran her car into a truck carrying chickens for slaughter. She smashed into the truck twice, intending to try ram it off the road so the chickens wouldn’t get killed (who cares about the driver, after all!) and she failed, leaving chunks of her own car behind, including her driver’s license.

      • How did she think that was going to work? How many would she have killed, and how long would the rest have lasted?

        • No idea. The police found her, at her house, drunk. And apparently, she admitted to the police that she only got drunk after she got home. Her reasons for attacking the truck was rage at the thought of the chickens being killed to be someone else’s food.

          For bonus points, the car was one of those little eco-fuel things. I’m somewhat surprised she didn’t kill herself in the process. The truck she was trying to ram off the road only got dented.

          • She said she did. She was charged with driving under the influence, so I suspect they may be able to prove she was lying.

          • ….one of those that you sometimes see pictures, with a bumper missing, and it says something like “eco-car hit a squirrel. Vehicle totaled, driver uninjured. Squirrel refused treatment and left under his own power.”

      • Feather Blade

        *sigh* because killing chickens by crushing their cages is so much more humane than cutting their heads off in a slaughterhouse.

        *SMH* There are just some stories that make a person want to find the perpetrators and beat them into the ground until they admit that they and their ideas are stupid.

        • And never mind that those chickens were alive for as long as they were *because* they were going to be eaten!

          It’s surprising how many things (both domestic and wild) prosper when humans can legally and carefully harvest them….

    • I would find it hard to believe that he couldn’t have gotten that drunk in half an hour. Recalling not only keg stands and beer bongs from my teenage days, but at least two times when I chugged an entire fifth in one drink (once was a bet, the other time was pure stupidity, with no mitigating circumstances), I would have to imagine that drinking a fifth of whiskey a half hour beforehand would produce a BAC as high as your guy blew.

      • I am not sure what the rate of absorption from the GI tract into the blood stream might be. Drinking voluminous quantities so shortly before sampling might only mean you’ve a stomach full of swill.

      • It may not have been half an hour; I heard this third-hand. It may have been within ten minutes. At any rate, being drunk at 5 in the afternoon is not a good choice to begin with, and if it was his third time facing DUI (and driving on a suspended license under someone else’s insurance), it’s not likely that he was smart enough to not drive drunk to begin with.

  4. I’ve always thought that violations of the 4th, and justice, would be much curtailed by allowing all evidence to be introduced, whatever its source. (Then the opposing lawyers can argue over its veracity and relevance – different things.)

    … BUT …

    If there is a question of whether the evidence was properly obtained, there follows a trial of the officers in question (or the county attorney, if there is question of whether there was probable cause for a warrant). If convicted, they automatically serve the same sentence as the accused is subject to (if convicted).

    • It’s the standard issue with almost all government overreach that is not power Trip. The individuals could be acting in good or bad faith, but if they have no punishment for bending or breaking rules it will spread and get worse. That the person abused gets some minor benefit later (still have all the actions leading up to a trial) doesn’t matter to them.

      But we have almost no punitive measures against out of bounds police work. Only teaching and being secstate probably less corrective action.

      • But we have almost no punitive measures against out of bounds police work.

        There are significant punitive measures in effect, but they tend to be institutional; the city is penalized, which causes the city to take steps to prevent future abuses of its authorized powers. A pattern of failure to take such steps will increase penalties for the governing authority.

        There are problems with this (there are problems with anything) but it is essentially the same premise as that underlying the Geneva Protocols, in that it assumes a bureaucratic structure capable of and willing to discipline its agents.

        It ought always be remembered that (in theory) all elected and appointed persons are subject to loss of office at the will the voters. This is unquestionably one of those areas where theory and practice greatly diverge.

        • Yes. But the typical academic issue of theory vs reality as well as the decreasing options for causing pain to the bureaucracy that commits most of these crimes make the existence of paper tiger enforcement all the more apparent.

        • scott2harrison

          Not sure what you mean about the Geneva Protocols. They are enforced properly by reprisals, not bureaucracy. In other words, if you kill our surrendering soldiers, we will stop accepting your soldiers surrenders (at least from the units that murdered our men).

          • snelson134

            Likewise, if you put your ammo dump under a school, you have committed an actual war rime called perfidy, and the resulting casualties if your enemy bombs it are considered atrocities by you.

          • The Geneva Protocols are premised on the existence of a command structure which exercises control over its troops, directing their actions and punishing infractions.

            A command structure is inherently bureaucratic.

            • The Japanese during WWII and German SS Troops were both under a command structure which exercised control over its troops. Which is why early on in the Pacific US troops stopped taking prisoners and later on in Europe prisoners found to be SS were routinely killed by front line troops, despite directives otherwise.

              The Geneva Protocols are premised on both sides being trustworthy enough to follow the rules. Which pretty much means that one side, ours, is usually hamstringed when engaging the enemy.

        • The problem with institutional punishment of individuals working for a publicly-funded body is that, very often, only the taxpayers are punished.

    • That would be the sane rule. The problem is that judges invented the rules and can’t back down because they have no way to revise — which is sane only when they aren’t making rules.

    • The problem with that is who bells the cat? It relies on the prosecutor, who also benefits from the evidence (convictions are good for a prosecutor) bringing charges.

      • Whups. Rather insane day here – I put “automatic” in the wrong place. Sigh. You’re absolutely right as I wrote it, not as I thought it… (And I just now almost put this whole reply in the wrong place!)

        Putting the danged word where it was supposed to go – read “…there follows an automatic trial of the officers…”. No prosecutor discretion in it; the defense asserts that the evidence was illegally obtained, if the judge agrees that it probably was, the charge is brought. (This does muddle somewhat more the job of prosecutor and judge – although not that much; remember that a judge can jail you indefinitely without a prosecutor being involved.)

        Now, for those trials there would need to be a separate group, hypothetically independent, to make the case against the rogue officer(s) or prosecutor(s). Getting that, sigh – I’ll have to leave that little detail up to Diogenes.

        Hoping that I didn’t trip over the fingers again (need to head out in a few minutes in search of plumbing supplies – the day continues).

        • Jeff Gauch

          “Now, for those trials there would need to be a separate group, hypothetically independent, to make the case against the rogue officer(s) or prosecutor(s). Getting that, sigh – I’ll have to leave that little detail up to Diogenes.”

          Just flip the roles. The suspect’s attorney would be the prosecutor while the DA would be the defense.

    • Agreed, but I’d take it further: rather, or in addition to, erring officers being punished for the crime they were investigating, I’d charge and punish them for the direct harm they did.
      E.g. you smash my door without a warrant (and without a need to), then you personally buy and pay for installation of a new door; etc, etc. You shoot my dog, who though barking was no threat – in a fenced yard, tiny, etc., you pay for a doggy funeral and dig the hole to bury it. You seize my money, car, gun, whatever and can’t show it was connected to an actual crime, you personally repay it or fix damages with interest.

      It’s become unfashionable for government agents to have personal responsibility, and I think that’s very harmful both to them, and to society.

      • The worst dog bites I’ve seen have been from dogs who were “just barking,” according to their owners. (there is a dog who didn’t bark at all in the top five, though)

        My mom has also tracked dogs back to a house after they mauled a calf, followed the muddy prints up to the door, and been informed that no dog of theirs was ever allowed outside without being on a leash. Those guys called the police when their dogs didn’t come back the next time he was caught ripping chunks out of a baby cow. (By law, if they are harassing the cows you can shoot them; my mom is much, much nicer.)

        I’ve also had people get very angry when I kick the dog who has his teeth sunk into my leg because he is “just playing.”

        Dog owners are, at best, not that objective about their pets; I’d guess because good owners have their dog integrated into the family pack so well that they don’t realize the dog is responding to “pack,” not “human.”

        • Oh, you’re right – our domesticated wolves can go hard in protecting their pack members, if they have the chance.
          But some cops (documented, read it, don’t remember where now) apparently get attitude – making a joke to each other of killing a family pet that 1) is helping to protect the family, which SHOULD put them on the same side as the cops, and 2) is on a chain &/or locked in a side yard where they constitute exactly zero threat to a cop.
          I want my police to exercise good judgement, and not be prone to maximize force.

          • In cases where that can be document, that would go under criminal charges– I can’t remember what it’s called, but there is a category for destructive harassment under the law, and that’s DEFINITELY in the “cause mental anguish” area.

      • Alan, those are good ideas. Just remember one thing:
        No one has to take the job of being a cop, and if cops decide that they will be crucified by Monday morning quarterbacks with 20/20 hindsight, they won’t do the job. In which case, you’ll be the one who can’t leave the house in the morning without wondering if it or your family inside will be there when you come back.

        http://www.washingtontimes.com/news/2017/may/4/fbi-report-officers-de-policing-anti-cop-hostility/

  5. There’s a local, Colorado Springs case of a retired fireman owning a large property in the mountains, and having stuff like an old jeep and a kit-built airplane stolen from the property for years. He finally caught the thief or one of the thieves and started beating him when the thief pulled a pistol and shot the retire fireman dead, then hid the body under a plywood sheet, then ran and was caught. The defense is pleading self-defense.

    • Yes, of course the defense is. But that one is “complicated.” The defense will do what it has to do. It invalidates nothing.

      • Self-defense in commission of a crime is … problematic.

        “I wasn’t going to shoot ’em, but when I grabbed the lady’s pearls the guy struck me and I had no choice. But hey, I left the kid alive!”

        Not even in Gotham does that fly.

        • At least the typical self defense relies on the party being legally where he is and if there is any proof that the defendant is in or of committing crime it will be a tall order. But sadly sounds like it may be a case of the victim having shot himself in foot first.

          • So, a principle: if you’re going to police yourself, i.e. arrest someone doing you a harm, you’d best have credible force on your side.

    • Dorothy Grant

      In Texas, there is no self-defense if you’re committing a felony. So if you go to buy meth, and your would-be-dealer robs you, you cannot plead self-defense when you shoot him. If you’re breaking into a house, the homeowner threatens you, and you stab him… nope, not self-defense. If you’re selling stolen property and the purported buyer tries to rob you, still not self-defense if you beat him up.

      And if you’re SOCMOB*, and SumDood tries to rob you, so you beat him up and take him wallet… congrats, the felony theft charge means it wasn’t self-defense.

      The defense can plead self-defense all they want, but it doesn’t matter when the law is applied. The defense can plead insanity and inanity, the defense can plead the heartbreak of psoriasis, but none of those mean that defense actually has a legal footing to stand on.

      *Standing on Corner, Minding Own Business. Apparently an extremely dangerous pastime, that attracts the vile and nefarious attentions of SumDood or These Two Guys, Never Seen ‘Em Before.

    • What else can the defense plead? Doesn’t mean they will be successful, but it is about the best defense they have. By pleading self defense they are basically saying it wasn’t pre-meditated, and while we would gladly take an acquittal, we are really trying to get the charge reduced to manslaughter.

      The defense would be ecstatic with an acquittal, but I’m sure they don’t expect one. Mitigating circumstances quite commonly affect not only exactly which crime someone is charged with, but also often tend to affect the severity of the sentence. A good defense attorney, when faced with a case they don’t think they can win, will work to provide their client with as light a sentence as possible.

  6. there are many others on my blog that delve deeper.

    Gee whillikers, Amie — this sounds like a perfect excuse for a link to your blog.

    check out my latest novel about silly psychic Ariana Ryder

    There is soooooo much room to speculate with a psychic and search & seizure protocols. I should probably read the novel (and re-read Bester’s Demolished Man before engaging on that topic.

    • Byzantine_General

      Does someone who knows psychics exist ever have an expectation of privacy? Hoo boy…

      • Paul (Drak Bibliophile) Howard

        Chuckle Chuckle

        It depends on “what are the limitations of the psychics” and on “what do people believe are the limitations of the psychics”.

        If a telepath can’t help but read the minds of everybody he’s near, then the expectation of privacy for people around him is different than if he has to “make an effort to read minds around him”.

        Of course, the “Laws” regulating psychics would be different depending on the Limitations.

        Jack Chalker had a universe where various types of psychics existed and all psychics “wore a brand” identifying what type of psychic they were. This “brand” could not be removed and had to always be visible to others.

        In that world, your mind could be read without your knowledge (even though the telepaths could chose to not read your mind).

        But the laws would likely be different if the telepaths (like Spock) had to make obvious physical contact with a person in order to read his mind.

        • How do you get around the possibility of a psychic lying fibbing prevaricating misunderstanding what was read in another mind?

          • Paul (Drak Bibliophile) Howard

            https://en.wikipedia.org/wiki/Spectral_evidence

            Mind you, it “might” be possible that the psychic’s “reading” is used to find physical evidence to prove the psychic was correct.

            On the other hand, Julian May in one of her novels had a Constitutional Amendment passed, after the appearance of real psychics, where a person could be convicted or found innocent based on three telepaths reading the mind of the accused.

            One telepath was working for the prosecution, one was working for the defense and the third was a “friend of the court”.

            I seem to remember that all three had to be in agreement for the person to be convicted.

          • Brings to mind the Twilight Zone episode where the mindreader picked up on a clerk’s plans to steal from the bank where he worked, and it all turned out to be a fantasy/daydream.

        • Ooo. this reminds me.

          In the standard superhero comics there are a lot of folk who can via one way or another control minds: hypnotic powers, telepathy, possession, all sorts of things. Strictly speaking one could not legitimately hold an individual responsible for acts they were mind controlled into doing.

          But here’s the thing. In universe, a lot of those mind control things don’t leave detectable after-effects. So you have someone saying, “I had no control over my actions because someone was controlling me”. Given the number of villains in the universe that do just that kind of thing, this would seem to create reasonable doubt. Kind of like “The Gods Defense” in Amie’s novel of that name.

          Of course, the comics tended to ignore this unless it was a plot point for a particular storyline. But it got me to thinking how would the law deal with that kind of issue.

          • [I]t got me to thinking how would the law deal with that kind of issue.

            A useful (if not entirely comparable) precedent might be found through research into how the law addressed the issue of crimes committed by slaves, viewed as chattel. If a slave committed a burglary, who got penalized by the law? Under the assumption that the owner was responsible for the slaves conduct, it would be proper to jail the owner; under the assumptioin that a slave might commit burglary in order to punish an owner …

            Other legal issues, such as those surrounding Faginy, might also provide fruitful research.

            • Which gets you back to the old idea of the law supposing a husband is responsible for the actions of his wife, and the retort (“if the law supposes that, the law is an ass” – Oliver Twist)

          • There’s an Astro City comic where a lawyer got his client off by citing all the instances of mind control and evil duplicates from another universe and dopplegangers. Since then, they added new laws.

            Of course, what you really need is people with the super power of lie detection.

            • snelson134

              Which “Wearing the Cape” provided in the person of Veritas, the man who sees all lies.

              • Paul (Drak Bibliophile) Howard

                Well, the shape-shifter Kitsune managed to successfully lie to Veritas. 😉

                Of course, we find out later that Kitsune can when taking the appearance of another person also can take into “himself” the complete memories & personality of that person.

                So when Veritas questions Kitsune, it’s the persona of the original person that answers not Kitsune “himself”.

                But then Kitsune actually is a “Fox Spirit Being” from Japan. 😀

              • Only one of him.

                • Paul (Drak Bibliophile) Howard

                  The only one we know of.

                  I’ve wondered about the gentleman Hope met in Japan. 😉

            • Terry Sanders

              Actually, IIRC, it may have partly been new laws, but the ACPD also beefed up its “exotic forensics” capabilities. Now they can *test* for mind control “residue” and doppelganger’s anomalies, etc.

              Mr.

              • Terry Sanders

                “Smart keyboards,” gah.

                I was about to bring up the pernicious effect Abigail Scioto and her fictional colleagues have had–leading juries to assume that exotic forensics tests are quick, common, and cheap; and the police should be using them at every traffic stop…

      • snelson134

        Depends on the details of the power. In Babylon 5, the telepath had to be able to see the person he was scanning; if you can scan anyone at any time from anywhere, that’s different.

        • Rada Ni Drako is a strong enough empath that unless she has her shields up, she senses other peoples’ emotions. Sometimes it is just as a sort of low “background noise” and sometimes she reaches the point of being overwhelmed. So for her to sense distress, or homicidal rage followed by satisfaction from one individual, would not necessarily be an invasion of privacy (it would be similar to her seeing something on a front porch).

          But she can’t sense specific details in most cases, only gradations of emotions. For example, anger at a piece of equipment, anger at someone’s team losing the World Cup, or anger at a specific individual all “read” the same to her until she seeks out the specific angry person and makes an active effort to gain more detail. And even then she may not be able to catch much more.

      • Patrick Chester

        …well, if your inner thoughts are the kind that inspire the words “brain bleach” then psychics may shy away from trying to read your mind.

        • Paul (Drak Bibliophile) Howard

          Well, some stories about telepaths put the telepath in a situation where “everybody is shouting right in my ears”.

          It isn’t what a person is thinking, but the idea that to the telepath you’re shouting in his ears and the telepath can’t stop listening to you shouting.

          It gets “really fun” when the telepath is in a crowded room where he can’t get away from the “noise”.

        • Terry Sanders

          In both Niven’s Known Space and in the Federation, an effective defense against Kzonti telepaths is to think aggressively vegetarian thoughts.

          “Gah! He makes me grind orange roots between flat teeth! B-a-a-r-r-f-f!!!”

      • FlyingMike

        Side note: The selectivity question is why distant-teeps do not generally attend orchestra concerts: The constant frenzied counting by the minds of 80 musicians up on stage prevents any appreciation of the music thus produced.

        Recordings work fine, though.

        Or so I am led to understand.

    • amiegibbons15

      Psychics do not meet the Fry std or Dilbert. 🙂
      In these books, they use psychics to find bad guys and lead to evidence, but since in this series most people do not know about magic, they can’t use psychics as evidence or a basis for a warrant.

  7. Byzantine_General

    The other day at Walmart (not Sam’s, that’s a whole different nother) an employee wanted to see my receipt as I was leaving. I said:

    “No, it was your stuff, I bought it, now it’s my stuff – and I don’t have to prove it! Now, you should know, that unlike a peace officer, you are personally liable to be sued if you unlawfully detain me. Am I free to go?”

    It felt good. Not just genial assholery. Exercise ’em or lose ’em.

    • This I must remember. And use with a(n evil) grin. And perhaps be ready to do the equivalent of “Ok Google local lawyers specializing in….”

    • snelson134

      And you will lose. Courts have established that the state has an interest (merchants staying in business period) in allowing merchants to make you prove that you didn’t just load up a cart and walk out, since proving you just paid for it is a trivial exercise, that of showing the receipt.

      • Byzantine_General

        Cite please.

        • snelson134

          You first.

          • Byzantine_General

            “You first” is a move, except when speaking to deep ecologists advocating for population reduction.

            To revise and extend my earlier remarks, the merchant also has the option of escorting shoppers from the checkout to the door and applying reasonable extra scrutiny to those who turn up at the door without an escort. Their business decision not to do that still doesn’t give them the right to search me without an articulable probable cause to do so.

            If a court has ruled that the receipt is a surrogate for the escort, I’m sincerely interested. That court has obligated customers to perform uncompensated labor (presenting the receipt) in support of the merchant’s loss prevention program.

            It’s sort of moot since the 16th amendment, but it does raise the question of how much slavery is too much.

            If their policy is posted at the entrance or is part of their “club” rules, my attitude is entirely different and cooperative. I will on occasion waive my rights; I will not have them disregarded.

            • Byzantine_General

              for “a move” read “a /perjorative goes here/ move”… angle brackets for metalinguistic categories don’t work in HTML. 😦

            • So you’re saying that every single time you go into a store, you first scrupulously check to see if any such policy is posted?

              • Byzantine_General

                I have reviewed the thread carefully, and I believe you are mistaken. Can you tell me what claim I made?

                • Bottom paragraph here:
                  https://accordingtohoyt.com/2017/05/06/what-you-need-to-know-about-search-and-seizure-but-were-afraid-to-ask-by-amie-gibbons/#comment-447303
                  If their policy is posted at the entrance or is part of their “club” rules, my attitude is entirely different and cooperative.

                  That does indeed imply that you are actually checking all posting locations before you are a nasty jerk to an employee who, gasp, is trying to keep the store from having to raise prices.

                  • Byzantine_General

                    As emerged in colloquy with RES, I see him as a kind of TSA enabler, and y’all don’t. Thus to you his feelings are salient, and to me, not.

                    Loss of the Bill of Rights doesn’t happen all at once, but atom by atom. I wish more of us had dug in our heels a long time ago. We’ve slid a long way.

                    • *coff* It’s not his feelings that’s the tipping, it’s your inability to argue against the reasoning and instead choosing to attempt to discredit it.

                      If you had a long-running history of unsupported being supported by good logic that simply hasn’t been stated yet, that might even function.

                      Instead, you made an assertion, and when Mary questioned you on it, demanded to konw where she got the idea, and when shown where she got it, declared that RES is a TSA enabler and his feelings are of no interest to you, and completely changed the subject.

                    • Byzantine_General

                      Broken anaphoric reference!

                      What I said had no particular relation to what I meant. What I should have said was “..colloquy with RES, I see him (the store employee)..”.

                      Mea culpa, mea culpa, mea maxima culpa.

                    • Your incident with a Walmart employee doesn’t involve government action, so it doesn’t implicate the Bill of Rights.

                    • Byzantine_General

                      The Constitutional nexus is not legal but social. Much as the USN patrols the Black and Yellow Seas to maintain their actual as well as legal right of passage in those waters, I make it a policy to not submit to searches without lawful authority, simply to maintain my right to do so. I’ve determined for example that a traffic stop will never lead to a consensual search of my vehicle. “Am I being detained?” and “Am I free to go?” (on dashcam) and continue my journey absent a positive reply. So I’m a zealot. So what? Extremism in the defense of Liberty is no vice.

                      My belief is that routine searches without lawful authority erode the general will to resist government overreach by making them seem routine and no big deal. And that way lies having the 82nd Airborne billeted in your spare room! .

                    • Scot Douglas

                      You seem to have a hard time distinguishing between private action, and government (local/state/federal) action.

                      No matter your personal hobby horse, interaction with a Walmart employee does not implicate the Bill of Rights at all.

                    • Byzantine_General

                      So riddle me this. Is a citizen who all her life has been asked to prove her innocence, and who has habitually complied, {(a) more (b) less (c) no difference} likely to assert her right not to have her vehicle searched pursuant to a routine traffic stop? Her right not to be detained while a highly trained (but to do what, there’s the rub) canine is brought into the picture?

                      Seriously, what do you think? If your answer is not (a) we have very different understandings of human nature. Which would be interesting.

                    • We may have a different view of human nature. We definitely have a different view of human intelligence. I expect most people to be able to distinguish between a Walmart employee, a rent-a-cop, and a real cop. The last one implicates the Bill of Rights, the first two do not.

                      We also evidently have a different view of the meaning of the word ‘innocent’ in this context. I’m somewhat interested in your insistence on a non-existent ‘right’ to refuse to show your receipt to a Walmart employee, while at the same time denying that a business has a ‘right’ to ensure that they’re not being ripped off.

                      All things considered, I suspect that most people are unlikely to even be aware of their rights during a traffic stop, and interactions with Walmart employees won’t change that one wit.

                    • I do not presume to know “human” nature, but such humans as I know well enough to project their probable responses are all capable of distinguishing between a social request (shopkeeper) entailing no legal hazard and trivial inconvenience and an official demand from someone authorized to suspend your enjoyment of your rights — and all would tell the cop to “get a warrant or get lost.”

                      Well, some, such as my Father-In-Law who (for his sins) worked in a big city DA’s office handling appellate arguments, might use a word other than “lost” in such circumstances.

                      So, that would make “b” the correct answer.

                      I strongly suggest you drop the issue; anybody you haven’t convinced of the rightness of your actions is at this point leaning to hoping the store’s checker call the cops on you or signal some one of the store cart collectors to accidentally sideswipe your vehicle.

                      When you’ve no new argument to make, trust readers to reach correct conclusions based on those presented; persisting merely annoys everybody, including (apparently) you.

              • Byzantine_General

                I first encountered this at a Fry’s electronics store maybe 35 years ago. I did not notice the signage on the way in; it was pointed out to me on the way out. Oh well, looks like I agreed to something inadvertently.

                I’m not going to claim every single time, but since then, I don’t believe I have discovered that situation on the way out.

                To clarify, I don’t boycott stores that post and check. It’s the checking without posting that crosses a line visible to me but evidently to few others.

            • “You first” is a move, except when speaking to deep ecologists advocating for population reduction.

              You made a claim, and then demanded that the guy who did not accept it support his lack of acceptance.

              “You first” means that you made the first claim– you support it.

        • Shopkeeper’s Privilege. The question of whether it extends to checking receipts, and that’s likely falls under state law.

          • Byzantine_General

            Shopkeeper’s privilege is a common law recognized in some parts of the United States under which a shopkeeper is allowed to detain a suspected shoplifter on store property for a reasonable period of time, so long as the shopkeeper has cause to believe that the person detained in fact committed, or attempted to commit, theft of store property.

            • …and walking out with property that still has the store price tags on it is often taken, and accepted, as probable cause for such belief.
              So is refusal to cooperate in showing proof of purchase. Generally, if said property is in a store-provided shopping bag, that creates enough contrary visual evidence for the store’s employees to forego a challenge.
              A certain amount of profiling also occurs – a teen in a hoodie in a candy store may legitimately be of more concern than an apparently reasonably affluent grandparent-ish person, based on average behavior and likelihood of caring about reputation.
              So — it’s not all that simple.

              Also note: you benefit yourself by cooperating, as it keeps prices somewhat lower… thus your labor in showing a receipt may be considered to be compensated.

              • This goes double at stores that put a big, day-glo “BOUGHT” sticker on things– frequently the “may I see your receipt” guy has a roll right there, for folks walking in.

      • Byzantine_General

        The merchant could have kept the stuff behind the counter and only delivered it to me after payment. Or followed me around the store making sure nothing was hidden on my person. Their business decision to not do those things gives them no right whatsoever to search or detain me after I have paid for the merchandise in my cart. Their request to do so is a bluff.

        • snelson134

          In which case, they can do that…. and you’ll never be able to buy groceries at Wal-Mart prices ever again. Run up a merchant’s cost of doing business through denying their reasonable right to make sure you’ve paid, and see how much you can’t afford.

          • Byzantine_General

            You would be right about Walmart; but wrong about Sam’s, for they have negotiated that right as part of your club membership; Walmart has not.

            • So all they have to do is put up a sign saying that your presence there gives them the right to demand it, and you’re just fine?

      • Paul (Drak Bibliophile) Howard

        Nod.

        Now, I’d also think that if I walking out of a store with loads of “goodies”, that I should “show them my receipt” if asked as proof that I did purchase the items as a matter of common courtesy.

        The store has a legitimate interest in making sure that people pay for the items in the store so as a legitimate purchaser, I should show them my receipt.

      • scott2harrison

        Not so trivial an exercise where there is a 5 minute or more line waiting to be allowed to show the receipt and have the content of the (multiple) carts checked.

        • snelson134

          Like I said, keep merchants from controlling shoplifting and watch them either refuse to operate there or charge high enough prices to cover the loss. Pick your poison; just don’t complain when they exercise one of those two options.

          • Byzantine_General

            Evidently they know that the “we reserve the right” notice is off-putting. So they do without the notice, and bluff that they have the right anyway. See the wiki excerpt on shopkeepers privilege upthread. It applies only if they have cause to believe you’re stealing from them. And not playing their reindeer games does not constitute such cause.

            I’m astonished that the parallel to “if you have nothing to hide you have nothing to fear” with regard to overreaching State surveillance isn’t evident to y’all.

            • I’m astonished that the distinction between a private entity and the state is not obvious to you.

              • Byzantine_General

                That one is easy. The “nothing to hide, nothing to fear” State isn’t bluffing, and has the criminal justice system available for enforcement. But every time I have declined to cooperate with an exit checker the store has backed off. They know they’re bluffing, and will not intentionally incur tortious liability.

                The stores exploit popular ignorance and ?as a side effect? prepare the population mentally for the next incremental turn of the State’s screw. And in their case, resistance however minimal is at least possible.

                Do I correctly understand that your position is that this resistance should be eschewed because it’s not nice to the functionary implementing the overreach? I’m sincerely interested in better understanding where you’re coming from.

                • I do not perceive private enterprise as greasing the skids for the all-intrusive state. I see the requests as a minimally intrusive procedure that is

                  a) within the reasonable rights of the retailer (see prior discussion of precisely when title follows possession)

                  b) minimally intrusive

                  c) not worth making society less congenial by constantly showing my arse starting fights.

                  There are probably more reasons, but those suffice.

                  • Byzantine_General

                    Thank you. That clarifies our disagreement. I must be descended from cantankerous Scots borderers.

                    Your point about leaving the parking lot rather than the store is new to me; IANAL and have no idea what F.O.B. might signify.

                    Would it follow that I would not be criminally guilty of theft until I left the parking lot with the store’s shoplifted goods? For clarity, let’s suppose the parking lot serves only the one store..

                    • F.O.B. is a shipping term meaning “Free On Board” and relates to the issues involved in transfer of goods, especially through shippers. The questions involve transfer of possession, transfer of risk and transfer of title. For example, you might have possession of a good but not title (awaiting processing by the state or requisite authorities.)

                      Say you sign the paperwork for the car, drive it off the lot and into a concrete mixer truck. Who bears the loss? The seller has not filed the transaction nor transferred title, but you’ve written the check, so who eats the car? Somewhere in the fine print and case law & precedents there is an answer.

                      Or say you order a 96-inch TV from Amazon; they charge your credit card and ship it to your home. The shipper leaves it on your front porch and one of the neighbors’ kids football tosses goes awry and topples the package. You’ve paid for the good, you’ve taken title, but have you received it?

                      Fuller discussion typically involves several hours worth of business law and is not something I feel fresh enough to engage in; my coursework in that was some thirty-five years ago and I’ve no doubt there have been advances in the interim.

                    • I do not wish to speculate on your ancestry, especially as more temporally imminent factors may explain the disparity. I am a “middle child” and inclined to eschew gratuitous arguments which will take time away from my reading. You might be a first, only or last child accustomed to fighting to get your way.

                      On the shoplifting issue, I suspect that local laws apply, but would think that you can be considered to have misappropriated the items once you pass the :point of demarcation” — typically the cash registers, but perhaps the area of egress.

                      Obviously, the zone from demarcation to exiting the lot constitutes a grey area.

                • And Byzantine_General is why we have a multitude of laws, regulations, etc. Because there are lots of people like him who will be rude assholes unless someone can call the cops to back up reasonable behavior.

                  • It’s also a cost/benefit decision by the store: the loss of time, disruption, etc. of calling the cops requires that the shopkeeper believes the loss, or example being made, will be worth it.
                    e.g. a candy bar, maybe not; $500 worth of meat, probably so.

                    • paladin3001

                      When I was working as an loss prevention officer (supervisor position), one store we were contracted out to (big name cross Canada) had the policy that all persons charged with shoplifting were also sued civilly for loss. Not much mind you, but enough to recoup some losses for hiring security and losing merchandise. This was something like 12-15 years ago now. Unsure what that company’s policy is now since they have since been acquired by another company.

              • Byzantine_General

                It’s possible you think (because of the post context) that I’m relying on the 4th amendment. In charity I must allow that you could have failed to notice that nowhere have I made such a Constitutional argument, which would have run straight onto the rocks and shoals of the state/private distinction.

                Only you know whether this straw man is a disingenuous and bad faith effort to “win” by any means necessary.

    • Arguably, it is not your stuff until you have left the parking lot. “Purchase” of the goods, obtaining and retention of a receipt until you have left the lot merely constitutes a license to remove the items from the premises, under which concept you have not taken ownership until you’ve left the lot.

      This is also why the retailer may be obligated to replace a (for instance) bottle of wine that dropped and broke while you were loading your purchases in your vehicle.

      Arguably. It has been a long time since I studied F.O.B. and other such topics. While you may have purchased to the goods, the real question here is at what point title (as opposed merely to possession) of the goods transfers.

      • Thanks to the Three Stooges, I *still* translate that acronym in my head as “Fork Over Balance.”

    • Terry Sanders

      And I might point out the poster’s first point. The 4th Amendment is a restraint on the *government.* A merchant is not a government agent.

      The worst you could do to WallyWorld that way would be to claim it the checker, representing the company, is accusing you of theft. I decline to speculate on your chances in court (not being a lawyer and all).

      • Byzantine_General

        No, it’s really “why should I” when the receipt is demanded. Nemo me lacessit impune, as it were.

      • Byzantine_General

        Should their exit checker hinder my exit or lay a finger upon me… that would be a cause of action, with no qualified immunity; as I stated in OP.

        • As stated, the checker would be acting in professional capacity as representative of employer and would not be personally liable except in the unlikely instance of violating company policies for such manners.

          While the checker could not detain you, you could reasonably be barred from taking the goods out of the store and granted (upon producing your receipt) a refund.

          While this would probably cost the retailer your custom, they probably don’t need it all that much.

          And you are being a pompous jerk, needlessly threatening a store employee simply trying to perform his assigned job duties.

          • Byzantine_General

            LEOs have qualified immunity. Door checkers do not. There is no “just following orders” immunity.

            He is personally liable for any torts he commits, as are as many layers as a good lawyer can contrive of those who hypothetically instructed him to do so. Personally. And his corporate employer is also liable.

            His assigned job duties are to harass shoppers based on speculation of possible rather than observation of actual wrongdoing. This does not activate shopkeeper’s privilege.

            Sucks to be him, I agree. Has his employer explained to him that he may be personally liable for any mistakes? But he’s executing a dubious and overreaching policy that is only effective because of general ignorance. In the process he’s eroding the assumption of innocence. And ultimately, that’s what offends me.

            //grasps lapels// I am wounded, deeply wounded, by the charge of pomposity. I was going for demoniacal malice. //unpurses lips//

            • Byzantine_General

              s/assumption/presumption/

            • Hmmm … point taken. I withdraw the allegation of pomposity as it is merely the statement of a self evident fact, such as bear scat in the woods.

              Door checker has no need to physically manhandle you, merely to stop your removal of the goods in the cart/shopping bags. Any resistance on your part to such restraint would make the tort responsibility yours.

              I doubt you would find much profit in court, especially as it seems probable any jury would be likely to find you personally objectionable and deserving of a good whuppin’.

              • Uppity Prole

                Door checker has no need to physically manhandle you, merely to stop your removal of the goods in the cart/shopping bags.

                Without your cooperation, how does he do the second without doing the first?

                • If he blocks your way, you’re going to have to initiate force to get by. That brings in new consequences for you.

                  • Byzantine_General

                    That’s the exact point at which the question of false imprisonment arises. There are specific condition for the shopkeeper’s privilege to come into play.

                    The store employee needs a reasonable belief that you’re attempting to steal something. Being tipped thru his earbud that you’ve been seen hanging steaks under your voluminous robes — is reasonable; in the absence of such observation, your declining to submit to a search even to the trivial extent of not showing your receipt — is not.

                    Somehow this discussion has been largely about how rude it is to refuse to be searched without a lawful basis. Tom Paine is spinning in his grave.

                    • Somehow this discussion has been largely about how rude it is to refuse to be searched without a lawful basis.

                      Somehow it’s not exactly a surprise to me that you presume exactly the point in contention to make this claim.

                    • Byzantine_General

                      From Wikipedia:
                      Shopkeeper’s privilege is a common law recognized in some parts of the United States under which a shopkeeper is allowed to detain a suspected shoplifter on store property for a reasonable period of time, so long as the shopkeeper has cause to believe that the person detained in fact committed, or attempted to commit, theft of store property.

                      Now I’m having to presume that you believe the “point in contention” is whether hindering my exit would have a good legal basis, solely because I declined to show a receipt. If so, the passage re-quoted above may clarify the matter. I didn’t presume, I researched. Go now and do likewise.

                    • On the upside, you finally offered some sort of evidence for your claim.

                      On the downside, it’s an unlinked Wiki quote.

                      Incidentally, you’re going to have a heck of a time getting false imprisonment when the only reason you’re stopped is because of a reasonable attempt to verify no crime was committed, and you could have left at any time by either leaving the uninspected cart or handing them the receipt.

                    • Byzantine_General

                      You are nothing if not persistent in your ill-founded quibbling.

                      1) What is this “finally”? — evidently you didn’t see “re-quoted” in the post you responded to. This was the second time I pasted the Wikipedia entry.

                      2) Wikipedia: my Blackstone is still packed down from the move. (Full disclosure: I don’t actually own a copy.) But really? Is this a college paper?

                      3) You posit that if challenged under the stated circumstances I have the options of abandoning my property or submitting to an unfounded search. No. I have a third option. Leaving. So far no store has exercised their option of hindering my departure. I wonder why?

                    • You are nothing if not persistent in your ill-founded quibbling.

                      Shockingly, someone who cannot grasp that telling people their objections don’t matter–but who cannot bring himself to actually answer them— without any sort of support, does not persuade me that failure to instantly agree with you is “quibbling.”

                      You made a claim.

                      Your grand total support for it is still bluster, rudeness and a wikipedia quote.

                      But you’re really good at attempting to change the subject.

                      It’s like you don’t actually have anything but an entitlement complex to fall back on….

                    • Byzantine_General

                      Foxfier, perhaps you could respond to the thread that is in the record instead of the one in your head?

                      I shall explain once again, and use small words; my previous “anaphoric reference” doesn’t seem to have worked.

                      I wrote the botched sentence in which “he” grammatically bound itself to RES rather than to “the store employee” as I had intended. And therefore sinned not only against RES but against the shade of RAH. I insulted somebody by accident!

                      As I have previously explained, and heaped blame upon my own head, albeit in Latin. Ctrl-F, “mea maxima culpa”.

                      And I hereby offer my profound apologies to RES should he have been offended by my egregious solecism.

                      Which brings us to you. Your insensate outrage on behalf of a third party is a strangely familiar pattern. Brendan Eich would recognize it instantly. But enough ad femina. Let’s talk about logic instead.

                      Do you know what the genetic fallacy is? It’s a favorite tool of all feelzsters. Disqualify and discredit, baby! But it only works if the victim adopts the frame of the attacker and slinks away. That isn’t happening.

                      So, had I indeed intentionally dismissed RES to his face, how would that affect the truth or falsity of my statements or the soundness of my logic?

                      Way back when, SNelson said “you first”. So I cited Wikipedia. I didn’t actually expect that somebody would say “OK, here’s my cite”, but if you want to continue to pretend that “eww! Wikipedia” isn’t quibbling, be my guest. If you want to continue to pretend I haven’t supported my claim, go right ahead.

                      Go ahead, hiss at me some more. You’re not communicating what you think you’re communicating.

                    • Byzantine,

                      You’re talking to people who have been here awhile. years, in fact.

                      Please keep that in mind when trying to puzzle out interactions between them.

                    • Byzantine_General

                      Thanks for the gracious provision of an off-ramp.

                      Foxfier, as expected, responds with more hissing and statements contrary to the record. She is willfully locked in a frame in which RES was attacked. Further engagement is not indicated.

                    • Nope.

                      I’m “locked into” the “frame” where you made an opening assertion, and now well into hitting the wall, you still haven’t given more than assertion support for it.

                      You have responded with insults, personal attacks, attempts to claim superiority, repeated claims that are in contrast to the black and white text, and a wide range of topic changes.

                      Plus a load of passive aggressive junk worthy of junior high, but not much past that.

                      Seriously, watch My Little Pony– maybe you’ll get some snark hints.

                    • Byzantine_General

                      “Seriously, watch My Little Pony– maybe you’ll get some snark hints”
                      and we have a WINNAH for the Ouroboros award for self-swallowing attacks!

                    • Not only have you not offered any kind of evidence, you’re working hard on wearing away at the “I’m rational, trust my judgement” angle.

                      You have done little but be insulting, belittling and nasty– yet anyone pointing out that your hits go amiss is…oh, wait, they don’t agree with you, so of course they’re anything you say.

                      After all, your entire argument has been based on your word, why would this be any different?

                    • Byzantine_General

                      Would you like a bigger shovel?

                    • Why, you moving up to a back-hoe?

                      Part of why I like this place is because everything you have said is right here.

                      Anybody with any sort of interest can go right up to the top and see that you made a claim, and have still supported it with only assertions and a bunch of distractions.

                    • Byzantine_General

                      You’re relying on the intense boredom of everybody else with this brouhaha to make these bizarre claims. Nobody is going to check, but if they did they’d find the following:

                      I cited wikipedia. You belittled the cite, and the site. Now you straight up lie, and say I never supported my claim. Your distaste for wikipedia doesn’t change the fact that when I asked for a cite and got “you first” I provided one. (The counter-cite implicitly promised by “you first” has not materialized..)

                      And you have the ovaries to refer to the black and white record, which does not in fact favor your narrative. If you’ll just quit telling lies about me, I’m done. Disappointed, too.

                    • Saying “wikipedia says” and copy-pasting something in support of a secondary point is not supporting your opening claim.

                      If you had the faintest awareness of the sort of folks that visit this site, you’d realize how insane the idea of anyone depending on everyone being bored with a topic in order to lie about it would be.

                    • I don’t have any authority here, but can I request this sub-thread be closed? I don’t think anyone has said anything new for the past several rounds.

                    • I’m mildly bored, too, but if you note what the guy accuses others of– I’d guess he routinely pulls this, bores everyone to tears, and declares victory.

                      I do, however, have a vague hope he might offer some sort of evidence beyond hear-say; it’s an interesting topic.

                    • but can I request this sub-thread be closed?

                      Second.

                    • Byzantine_General

                      I admit I’m flummoxed by F’s adamantine certainty that I haven’t supported my claim; perhaps someone can help me understand just how she can believe that? Does a cite simply disappear when F says “Pish, it’s Wikipedia”?

                      Wikipedia has problems. But the topic is far enough from their known failure modes that on this I weight it as substantially more credible than hearsay. YMMV; but to state that I have not supported my claim* is to utter a falsehood.

                      It’s all tediously meta and over-personalized at this point.

                      * that in the circumstance where the suspicion is no more than the perception that shoplifting may be occurring the shopkeeper’s privilege does not apply..

                    • Third. Stop this. No one is winning this thread.

                    • Byzantine_General

                      Done.

                    • Not boredom; an actual life. Where should we send the quarter it would take to get you more of one than you have now?

                    • Foxfier, perhaps you could respond to the thread that is in the record instead of the one in your head?

                      Oh, gosh, how creative! A lame attempt at belittling, rather than evidence! What a change!

                      Because it worked so very well with RES, right?

                      I note you still haven’t offered any sort of evidence or support for your claims.

              • Byzantine_General

                Everyone gets to !enough! in their own time. For me the erosion of the presumption of innocence does it.

                My background check for fresh employment (YAY) has insisted (BOO) on sight of my college diploma, awarded far away across the sea and long long ago. Nobody in 40 years of working in the US has ever asked to see it. I haven’t seen that thing myself for 10 moves or so. My alma mater/s brave new computer system wasn’t backloaded all the way to the early 1970s, and for three weeks now they haven’t delved into their dusty physical archives at my behest. Not a priority ticket..

                My agency finally reached up high enough in the client organization to find someone capable and willing to vary their policy in this regard, and I was finally allowed to start work, a thousand bucks out of pocket. Due to non-presumption of innocence.

                It’s possible I’m hypersensitive about this issue.

                • Presumption of innocence is a concept for the legal system, not for individual transactions.

                  When the charming young man appears at your door to tell you that if you subscribe to just three of the many fine magazines he is selling he will qualify for this week’s scholarship donation, you are under no duty to assume he is innocent of any subterfuge. Nor are you required to grant such presumption to the young man lewdly eyeing your daughter.

                  • Byzantine_General

                    I have black family members who report being dogged around the store when they go shopping. They’re irked by this. They would like a presumption of innocence and don’t get it.

                    My expectation of a presumption of innocence as a shopper could easily be cast as my “white privilege”. Citing Bayes’ theorem doesn’t seem to slow down the accusations of racism. Oh well.

                    • I’ve heard the same stories.

                      Thing that I noticed was that if I did that behavior, they’d follow me around, too– baggy clothing, shopping around and around and around, not getting a cart, especially if you have a habit of picking stuff up and then putting it down in a different place, large bags, acting like the loss prevention guys are the enemy…. (although the one time I did that, I couldn’t tell they were loss prevention until later)

                      But I’m not black, and I’m not young anymore, either. What I was, was acting like someone who might be a problem– so they observed, and responded.

                      As someone pointed out earlier, presumption of innocence is a legal construct. I’m not required to assume that four guys in antifa gear knocking on my door at one in the morning just had their car break down, and interpret the tire wrench as evidence.

                    • Byzantine_General

                      Oh my, {laffs}. If only you could meet my stepson [redacted]. His story is not mine to tell, so please forgive the []s.

                      He has an MSc in [redacted] and his style tends towards, without yet reaching, hounds-tooth tweed jackets with leather patches at the elbows. He is in the running for whitest black man in [redacted]. He probably got this from his Mom, the Scandinavian, whom I have the honor to espouse.

                      That Bayes’ theorem is a stone cold bitch, conditionally speaking. It gets him coming and it got you going. And all the actors are rational.

                    • Your response at best indicates you skimmped my comment and misinterpreted it as “baggy clothing” meaning something MC Hammer might wear.

                      At various points I have worn tweed jackets. They have awesome pockets, especially if you can’t afford to have them tailored.

                      The key is “place to put things inobtrusively.”

                      If he also thinks before shopping, he will be mimicking the method used to confuse loss prevevention.

            • Court may not agree with your definition of “harassment” – if his actions to stop you are courteous and in line with general cultural traditions, you may even get laughed out of court.

          • Most of them also have common sense when applying this. I have never been stopped at Walmart (or other non-club stores) when I am leaving with bagged items (or mostly bagged items, in a cart). It’s when I have nothing in a bag (couple gallons of milk, I don’t waste the bags that aren’t going to hold them anyway). In that case, I have the receipt in hand (and, oddly, am usually not accosted then, either – you wouldn’t think I have an honest face, going by the D/L picture…).

            Most retailers do depend on “people following you around the store” – via the security cameras – to prevent theft. And there have been many instances where people have had a fit over the “violation of their privacy” when being surveilled in this way. Another place where the common law essentially has “shopkeeper’s privilege” – on their property, you have no “expectation of privacy.” This gets sticky, too – I happened to be present when a doper was arrested in Walgreens – he was shooting up in their restroom. He was yelling on the way out, “you can’t bust in on me in the bathroom, dude!” (That was a customer report, though, I’m quite sure; not cameras. At least I hope not…)

            • Michael Houst

              Hint: Don’t try to shoplift at Home Depot. They have HD cameras everywhere, to the point they can count the hairs in a person’s nose, much less read the bar code on what you just stuffed down your pants.

              • Never been in one of them, but some of the pictures I’ve seen – they look like the room that Pournelle/Niven described for their entire arcology…

                Grocery stores seem to be lacking, however. Few months ago, I had to tell the butcher about the guy stuffing steaks in a backpack between two of the island displays. I don’t know what it is about steaks that attract shoplifters – other than the obvious price bit. Over the last few years, those who don’t have to worry about that have been caught – two local news anchors and a city councilman (who had them under his hat, for God’s sake…)

              • They can also catch cashiers who scan a gift card then through sleight of hand give the paying customer one that has no value and keep the scanned one. Used to work for them, and yes, it happens.

              • Not sure if Lowes has the same thing, but I know they can check it pretty dang quick– I once went in for fifteen studs, and the kid at the checkout accidentally punched FIFTY. Didn’t notice until I was home, but went back– and they refunded it after a maybe five minute wait.

            • I get randomly picked fairly often, because I’m usually there with several kids and I prefer to save the plastic trees, so there’s usually several things unbagged- it’s a known tactic, kids are GOOD at distraction.

              It takes all of maybe three seconds, including pleasantries, except for that one time the lady wanted to talk to me about my kids’ behavior. (…it was praise, she said most of the kids were total twerps and she was really impressed with mine. #proudmomma)

    • I would like to agree with you, because a) it irritates me when somebody I don’t want to talk to (okay, I might be a bit antisocial) stops me and asks me to prove I’m not a thief, and b) I always like a good argument, and there are obviously plenty of people here to argue against.

      Problem is the store is private property, if they stopped you AFTER you left the store, and asked you to prove that you hadn’t stolen the goods, you would be in the right. Now private property laws and regulations vary from state to state, and at times from county to county and city to city; so I’m not going to say that they either do or do not have the right to ask you to show your receipt; but in many jurisdictions they do have that right. You don’t have to show it to them, but it is kind of like the law that you don’t have to provide your social security number to the Department of Fish and Game. You don’t have to show them your receipt, but they don’t have to allow you to remove property from their premises without proving you’ve bought it, either. Just like Fish and Game can’t require you to give them your social security number, but they simply won’t sell you a license without you providing it.

      • Byzantine_General

        Au contraire! I have every right to remove my property from their store. They have many options to approach 100% certainty that it is in fact my property, but subjecting me to a search absent reasonable grounds to believe I’m thieving is not one of them.

        • Byzantine_General

          I should not ignore RES’ erudite speculations about when title transfers, see “F.O.B.” earlier in the thread. But if they apply here, the law is an ass.

          • Well, yes, the law is often an ass. Usually because it’s a compromise between different rights, harms, and scenarios, arrived at with imperfect foresight and in less than sufficient time, by extremely fallible humans.

  8. It’s called the exclusionary rule.

    And I HATE this rule!

    There’s a long rant that goes with it, but the short version is: Since the rule only takes out the evidence in a trial, it punishes the system (and not the cops who did the violating in the first place) by letting the criminal go free, but provides NO remedy whenever it’s an innocent citizen whose rights were violated because that citizen is not on trial.

    Bob Ingersoll, a long time public defender from, I think, Cleveland used to have a column he did “The Law is a Ass” in which he discussed use and abuse of the law in comic books (it was in a magazine aimed at comic fandom). He also discussed the law in general. He did some pieces on the Exclusionary Rule and one of his points was that originally evidence wasn’t excluded. A person whose Fourth Amendment rights were violated was to attempt to obtain redress by suing the government. You can imagine how well that worked, particularly in the case of someone convicted via such illegally obtained evidence not being in a good position to pursue such a suit.

    The the Exclusionary Rule implemented, basically so that the government can not be allowed to profit from violating the 4th Amendment. Still not a great result and inadequate on a check of government overreach but don’t ask me what the best way to deal with it is.

    On a related note, the Indiana Supreme Court some years back passed a ruling which must have come from someone introducing hallucinogens into the courthouse ventilation system. The ruling was that individuals did not have the right to resist illegal entries and searches by police officers in their homes. The reason was this was so bizarre was that even to my layman’s eyes it looked like they had a pretty open and shut case of “exigent circumstances” making the entry entirely legal: Domestic call. Woman who made the call inside. Man outside saying “we don’t need the police here.” Police go in anyway. Duh.

    One sheriff said, in so many words, that that ruling gave him authority to search any house he wanted any time he wanted. No. It said they couldn’t resist you. It didn’t say that any evidence obtained would be admissible. But anyway…

    However, in response to that ruling, the Indiana legislature basically said “wanna bet” and passed actual legislation saying “Oh yes you do have the right to resist illegal intrusions by police”, and the then governor signed it (slight irony in that he’d also appointed one of the judges who had made the ruling).

    • Of course, if you exercise that right to resist illegal intrusion by police then. better. be. sure.

      • 1) If you successfully resist the police, it often would require lethal force (for which you WILL be prosecuted).
        2) If you unsuccessfully resist the police, the police often choose to use deadly force to defend themselves in those situations – and usually get a free pass from grand juries and/or juries (assuming it even gets that far).

        I’m not sure there is a good answer when it comes to an illegal intrusion by the police – other than a civil lawsuit after the fact.

    • However, in response to that ruling, the Indiana legislature basically said “wanna bet” and passed actual legislation …

      Wait, what??? Political authorities responsive to the public voluntarily restricting their powers? As if that could ever work!

    • The question of what is and is not admissible in court is a very interesting one. Not related to the 4th Amendment, but I had an interesting run in with this recently. I was on a jury where one important issue was what was stated in the police report. We spent several hours listening to the lawyers and witnesses argue about what the report did or did not say and what that did or did not imply. Given all this, we not unreasonably wanted to see the actual report, see in black and white what it actually said, and decide among ourselves what a reasonable person would think it meant in context.

      We were told that the report was inadmissible because it was hearsay. People describing it to us and reading its alleged contents is not hearsay, but the actual paper itself apparently would irrevocably contaminate us and ruin the chance for a fair trial.

      • snelson134

        At which point, the government has not proved its’ case beyond a reasonable doubt, and you acquit.

    • I’ve been on the receiving end of a “no-knock” drug bust before. No warrant, either. Left me with a minor, permanent disability and a really bad attitude about thugs with badges.

      I wasn’t as well-informed then as I am now. And I didn’t have video to contradict their story. And I wasn’t nearly as cranky then.

      • Put this on your no-trespassing sign:

        U.S. Code Title 18, Sections 241 & 242

        Gov’t minions generally will not trespass beyond such notice without a warrant, and federal marshals take a dim view of violations.

        • Paul Koning

          Yes, that’s a wonderful pair of laws. It could, and should, be applied against anyone who commits illegal search. For that matter, it could be applied in response to the vast majority of government actions (since, in the words of Rep. James Clyburn (D-SC), “There’s nothing in the constitution that says the Federal government has got anything to do with most of the stuff that we do.”
          Then again, has it been used, ever, in the past 100 years or so?

          • Funny, but I find Congressman Clyburn’s moral authority in such matters less than compelling. He did vote, after all, for the Affordable Care Act (among other extensions of Federal Authority that would likely strike the Framers as insane.)

            His statement rings of “Constitutional authority? We ain’t got no Constitutional authority. We don’t need no Constitutional authority. I don’t have to show you any stinkin’ Constitutional authority!”

            • Paul Koning

              The reason I saved Clyburn’s quote (which, by the way, is transcribed verbatim from the audio of a broadcast interview) is exactly the “any stinkin’ Constitutional authority” point. What made his comments striking is not that he believes this, but rather that he was careless enough to admit it in public. The reality, unfortunately, is that all Congressmen believe this. A few may be a bit reticent about it (the Pauls come to mind) but even they don’t apply the Constitution as written, nor has any significant fraction of government officials since at least as far back as the mid 1800s, and arguably as far back as 1789.

  9. As for person A stealing evidence against person B and giving it to the police, that can be a two-fer for the Police:
    They get to use the evidence against person B.
    Person A just confessed to breaking and entering, theft, or what have you which don’t stop being crimes just because what was stolen was evidence against person B.

    • But what about (knowingly) accepting stolen property? That makes the police/state guilty as well.

    • Paul (Drak Bibliophile) Howard

      True.

      However, we can get into “situations” where the thief isn’t prosecuted for the theft because he turned the evidence over to the police.

      Thus there’s the appearance that the police wanted the thief to get the evidence for them.

      Of course, it would be a different situation if a unknown thief sent the police evidence proving that so-and-so committed a crime.

      • Traditionally, turning it over to the cops is a sign of trying to make things right– sort of like not charging a prostitute when she turns over her drug-selling pimp on child kidnapping charges.

        The most abused form is probably the plea deal; we’re all familiar with the really bad ones. (And even though we don’t think of them as much, the ones where the plea deal lets the one guy who is actually repentant not be punished just as hard as the guys who want to keep doing what they’re doing.)

    • Actually, in most of the cases I have heard of, Person A gets off. I have heard of burglars turning in a stolen laptop for the child pornography, and a car thief who realized he had stolen a car bomb, carefully drove it to a deserted area, and called a cop he knew so he could be taken seriously.

    • As for person A stealing evidence against person B and giving it to the police, that can be a two-fer for the Police:
      They get to use the evidence against person B.
      Person A just confessed to breaking and entering, theft, or what have you which don’t stop being crimes just because what was stolen was evidence against person B.

      More complicated then that. If you know your stolen property is in a garage or house, but have no proof, you’re in a quandary. And let’s face it, there’s a lot of times we know something is true, but can’t prove it. So you force the garage door open, and, VOILA!, there’s your stolen stuff and a whole lot more. You call the police. As a private individual, you broke the law (breaking and entering) but in doing so uncovered a greater crime (Theft). In most jurisdictions, for a private individual, finding the greater crime excuses the lesser crime. But in all cases you’re doing it at your own risk. Be stealthy in your breaking and entering. If you don’t find evidence of another crime, you ARE guilty of breaking and entering and there is no defense.

      • In some cases, I’ve heard of the commit-er of the lesser crime getting a light sentence at the worst (community service, a fine, a short period in jail) so, it’s interesting to see.

        I remember reading some books supposedly documenting the lives of cops that sometimes a good detective’s net of informants include petty thieves and prostitutes. It makes for an interesting balance.

        • As Ayn Rand pointed out, it is useful for the government to have a few levers on folk. Makes it easier to turn the screws when they want something from ’em.

          • Sadly, that says more about Rand than it does about police mindset.

            It’s hardly that rare to have people soothing their knowledge that they have done wrong by doing good deeds– nor of blackmailing for information going spectacularly wrong. (And that’s without it being an awesome way to direct someone straight into a slaughter.)

            As Joker put it– I’m a criminal lunatic, but I’m an American criminal lunatic.
            (Objecting to working with a honest-to-goodness Nazi.)

            • Yeah, well … her formative years were spent in the bosom of Mother Russia, where secret police were not an invention of the Soviet.

              • *nod* That’s my issues with Rand in a nutshell. She grew up in a terrible, strange, abusive, exploitive situation…and took the assumptions with her when she left.

                She did do rather well throwing off a lot of them, and some of her stuff is useful for pulling folks out of similarly bad situations.

                • Rand was often (I would even say usually) right, but she was both an idealist and a despicable person, personally.

                  That combination did more to undermine her than practically anything her enemies could accuse her of.

                  • Byzantine_General

                    By revealed preference, she stood foursquare for rule by the best dialectician in the room. (That would be her.)

                    Her axioms of course stood by themselves, that’s what axioms do. Getting others to accept them? Well she was a formidable rhetor as well.

        • A good detective’s net of informants would have to include petty thieves, prostitutes, and druggies. The rest of us don’t know what’s going on in the world of criminals. For example, take me. I know people who bet with bookies. I haven’t the slightest idea of where to find one, or how to place a bet with one. Same thing with drugs. In HS, I knew who the druggies were. Not a chance in h— any of them would have sold to me. Now, my youngest, the only one left in school, can point out the druggies- and none of them would do business with him. If for any reason I decided I wanted to buy street drugs, I’d probably end up buying from an undercover cop.

          Same with illegal weapons sales. There’s a market for them. meaning there’s both customers and sellers. How do find a seller? Especially one who won’t sell you out if he gets caught? For most of us, that’s the first problem should we want to acquire something we don’t want the government to know about.

  10. Two far to common practices committed by our gubmint that I in particular have major issues with are late night no knock warrants and the whole asset forfeiture business.
    Busting down a door after dark with no warning has gotten civilians and their pets killed, and on occasion a cop or two as well. And on more than one occasion it was found after the fact, when the damage had already been done, that either the information used to obtain the warrant was bogus or worse that the raiders got the wrong address.
    As for asset forfeiture, that’s a cash cow for law enforcement agencies that they employ with great abandon. They confiscate cash and property on the suspicion that it may be related to a crime and when no crime can be determined the former property owners must sue the state for its return. Often from what I’ve heard the rightful owners are offered only partial restitution so they’re out the difference plus the legal fees necessary to get back anything. In this they borrow the tried and true tactic of the IRS, seize assets and declare you guilty until you prove otherwise.

    • reddragonhawk

      Which should not pass constitutional muster. But the supreme court has apparently not been too beholden to that document for some years now.

      • Jeff Gauch

        The only civil asset forfeiture cases to get to the Supreme Court have dealt with people who have actually been convicted of a crime. The cynical part of me thinks that governments at all levels give up the assets of those who fight after the appeals court ruling, no matter how the court rules, in order to keep SCOTUS from shutting the racket down.

        • Wouldn’t surprise me too much, given the cases in TX and OK (I-40) that reached appeals stage over the last 24 months.

        • reddragonhawk

          I meant in general, things like https://www.infowars.com/supreme-court-refuses-to-hear-case-on-no-knock-police-raids/
          By refusing to even hear the case, they pretty much said it was ok to do a no-knock raid on the guy. Not exactly civil asset forfeiture, but along the same lines of pretty easy to see NOT ok in the constitution, but the supremes kind of not caring. That and Kelo, of course. They’ve been participating in eroding our rights for a bit now.

          • Grrr, the page does not want to come up for me. So I’ll comment in a general way, not to whatever the specifics are here.

            There are three “justifications” for a no-knock warrant service.

            1) Given warning, evidence may be destroyed. To my mind, this is a “too bad, so sad” situation – regrettable, but the State should expect this to happen, and have other evidence.

            2) There is reasonable expectation that the entry will be violently opposed. Here it is iffy – to be honest, I don’t believe that armed officers of the State have the right to expect their jobs to be absolutely safe. It does take more resources to deal with a stand-off, but a civilized and free society comes with a price tag.

            3) There is reasonable expectation that, with warning, a crime victim (such as a kidnapee) will be further victimized, or that an innocent third party will be used as a hostage or shield. Here, there is absolutely reason for shock and awe tactics. (Sometimes badly implemented – in the “flash bang in the crib” incident, the cops made a grievous mistake, and should have paid the consequences for it – but the actual targets of the raid were obviously using the baby as a shield. I would hang them from the lampposts.)

            • Um, no. In the ‘flash-bang in the crib’ incident’, none of your justifications apply and the baby was *not* being used as a ‘shield’. That would imply that the parents had reason to believe they were about to have their property invaded, which is not the case.

              It was just a f-up by the LEOs.

              • I may have it wrong, but as I recall, the target of the raid wasn’t even in the house when the police invaded… which you’d think a little surveillance would have established.
                If true, then criminally lazy.

            • IMHO, a no-knock raid entry is far more likely to violently opposed, especially if they’re entering the abode of someone who’s both innocent and armed, who would have every reason to expect an intruder.

              • Absotively… There was one incident here where they ended up killing a vet. And were very fortunate they didn’t wound or kill several neighbors – there were rounds being picked out of walls in houses all around the neighborhood.

                Case of wrong address. I wish the family had continued without settling out of court – but, as noted, the immunity of the county attorney (the one who swore out the bad warrant) would have made it a largely pointless exercise.

                Those with some familiarity with the local crime scene are very suspicious that the true objective of the prosecutor was actually to intimidate a gang that is a rival to the one he is in bed with. This is one county where the county government and Sheriff’s office is far more corrupt than the city police.

              • 1) high resolution security system. With audio
                2) camera angles and planned responses all chosen for “how will this look in court and on YouTube”
                3) the system runs off batteries, and storage is to a server not actually located on the property
                4) the DVR is big and obvious. And redundant.
                5) the door frames and doors were specifically designed the pipe-with-handles in mind. And the walls were reframed to properly support them while the walls were open
                6) the hinges and locksets are purely for convenience. Security comes from the drop bars.
                7) the new low-E windows are smaller and higher than the originals, and even if they got the window grates off, they’d need a stepladder to see in.
                8) the security grates for the windows were chosen with a mesh too small to pass gas canisters and flashbangs

                I really wanted the robotic sentry guns with the garden hose attachments, but my wife thought that was a bit over the top, even when I pointed out they could also water the yard…

          • Jeff Gauch

            While I don’t exactly agree with either of those cases, neither one really touches on any Constitutional issues. It is by no means unreasonable to think that executing a warrant on a house that was known to have guns has a significantly elevated risk. Even if the known gun owner was law-abiding, how would the cops know what access the suspect had ?

            The Constitution only requires that property owners be compensated for their property seized under eminent domain. Kelo just said that taking property and giving it to another private party is an acceptable application of eminent domain. It’s an extension of the eminent domain doctrine, which long predates the Constitution.

            • The Constitution also requires that the property be taken for ‘public use’. This generally meant “Forts, Magazines, Arsenals, dock-Yards and other needful Buildings (schools, libraries, police/fire stations, etc.)” In other words, facilities that have some public use. It does *not* mean taking property from private party A and handing it over to private party B just because B is (claiming to be) able to make a more productive use of the property and thus pay more in property taxes. At least up until Kelo.

              And anybody seen the Kelo property that was supposed to have been ‘developed’ lately?

              Great job, New London! And thank you, Supremes, for aiding and abetting this tragedy.

              • That picture, the aftermath of Kelo, is why courts have been chipping away at that particular unjustified by the Constitution decision.

                Just because a judge says it’s constitutional, or unconstitutional, doesn’t mean it is or isn’t.

                • Robin Munn

                  Just because a judge says it’s constitutional, or unconstitutional, doesn’t mean it is or isn’t.

                  THIS. This, right there, is the most important concept we need to get across to the next generation. If ever a Supreme Court ruling says “This law is constitutional”, and enough people say “Um, no it isn’t” and engage in Irish democracy, that will be a major turning point. It’ll take decades, maybe a century or two, of work, and there’s no guarantee of getting there. But there is a guarantee of failure if we don’t try.

                  • Reading this article, NC motorists who hit protesters blocking roadways will be legally protected under proposed bill, I don’t think that Progressives have the slightest understanding on what the Constitution actually says.

                    [SNIP] Democrats in the state say that the bill raises constitutional concerns due to the fact that it only applies to situations where the person struck is participating in a protest and blocking traffic.

                    “If you want to do something, you need to clear up the bill,” state Rep. Mickey Michaux, D-Durham County, told the News & Observer. “It basically is plain and pure unconstitutional.”

                    [SNIP]

                    The bill comes as another bill, also prompted by the Charlotte protests, was rejected by a state House committee.

                    The “Economic Terrorism” bill would have beefed up penalties on law-breaking protesters. Democrats in the state said that the bill infringed on First Amendment rights.

                    Moreover, in thinking back to their outcries over supposedly “unconstitutional” actions by the Bush (43) Administration, I don’t think they want to know. It is a talismanic term they wave the same way that a toddler cries out, “No Fair!”

                    • Well … dang. Apparently I failed to close the italics after this. Not the first mistake I’ve made tday, won’t be the last.

                    • A lot of folk have the mistaken idea that there is a “right to protest”. There isn’t. The closest to a right to protest is “right to petition government for redress of grievance”.

                      There are certain rights that can be used for protest: Free Speech, Free Press, Right to Peaceably Assemble being chief among them.

                      But there is no right that makes something illegal (like forcibly detaining somebody who is going about his lawful business) to be legal simply because it’s “protest.”

                    • You know that, I know that, I would wager all Huns know that — but it doesn’t seem to matter to Proglodytes and their Political feeders. Their idea of constitutional seems to be “things I want to do” and unconstitutional means “things you want to do.”

                      How to encourage their grasping of reality would seem the main question.

                    • Paul (Drak Bibliophile) Howard

                      Slight disagreement.

                      “Right To Protest” is IMO part of Free Speech.

                      Throwing “bricks” and destroying property isn’t part of Free Speech.

                      What the SJWs are doing is rioting and that’s never been part of Free Speech or legitimate protesting.

                    • “Right To Protest” is IMO part of Free Speech.

                      It’s a subtle distinction I’m making here. You have the right to Free Speech. You may use it to protest. Or you may use it to say everything’s great. It’s still Free Speech whether you use it to protest or not. It’s Speech that you have the right to (and Press and Peaceable Assembly). Protest is one of the things you may use them for.

                      But not all things one might call “protest” are protected because the right isn’t to protest per se, but to certain things that can be used for protest.

                      And I think I have my blog topic for tonight. (Since I’ve started trying to write something on my blog every day I’m always a little nervous that I won’t have something good to write about.)

                    • Yes, it rather hangs on how we define “protest” don’t it?

                      Assembly and speeches, no doubt. When you get into looting, property destruction, threatening people physically it seems likely we’ve exceeded the boundaries of the term … although I suspect there is a cohort standing erect in support of people’s right to “dance in seductive manner while removing their clothing” as protected speech.

                    • Part of what I want to go into is that, yes, breaking the law can be legitimate protest if:

                      – The law in question that you’re breaking is itself unjust.
                      – You break it specifically to evoke the reaction of government to show how unjust it is.

                      This is what Ghandi’s “Civil Disobedience” was about. It wasn’t breaking laws against robbery or such–just laws–but laws against things like “you can’t make your own salt from evaporating your own ocean water along your own shoreline” (using an example from the biopic, however accurate or inaccurate it might be).

                      It’s a very courageous act because you’re calling the punishment on yourself to show people how unjust the law is.

                      Breaking windows and looting stores as part of a mob relying on anonymity to protect you from retribution? Not so much.

                    • BobtheRegisterredFool

                      So promoting violent protests outside Matt Furie’s house with the hashtag #PepeLivesMatter isn’t a perfectly valid form of speech?

  11. The War On Drugs ™ has soon much to answer for that I can’t see the end of the list because of curvature of the earth. But number one with a bullet is the way it has eroded the Fourth Amendment. The idea that a reasonable and legal way to serve a warrant against someone with no record of violence is to stage a SWAT dynamic entry raid on his home in the wee hours of the morning is a bastard born of the War On Drugs and sired by Hollywood.

    There needs to be a BIG shift in how police officers who violate peoples’ rights are treated. And the biggest obstacle to that change is the Black Lives Matter (Seriously? You had to name your movement BLM? Every time I see that I think ‘Bureau of Land Management’!) imbeciles, who seem to pick their causes and behaviors with discrediting themselves specifically in mind.

    • A fair number of rural folks think that BLM == imbeciles could apply well to either group. See, “controlled burn out of control”.

    • Jeff Gauch

      They’re not looking to discredit themselves, they’re looking to keep the issue alive. See, if there were a problem with police shooting innocent people out of hand and BLM focused on those cases the electorate would quickly fix the problem. By focusing on the cases where police shootings were justified the electorate sees that no action is necessary and BLM gets to keep making noises that keep poorly educated blacks on the Democrat plantation.

    • The idea that a reasonable and legal way to serve a warrant against someone with no record of violence is to stage a SWAT dynamic entry raid on his home in the wee hours of the morning is a bastard born of the War On Drugs and sired by Hollywood.

      The violent cesspool that is Mexico’s gang lords has a lot more to do with it– since the late 70s at least there’s been what amount to a small foreign nation’s outposts in remote areas, complete with air transport.

      I grew up knowing that my parents might not come back, in Nevada because the windmills and generators for the water troughs were a source not just for the “not paying for the grid” type off the grid folks, but for anyone who didn’t want official notice and liked all the roads that can function as landing strips. In Washington, because the forests are used for pot grows.

      We don’t have no-go areas in the US, at least not for the cops. I like it that way.

  12. Exceptions, exceptions.

    My favorite part of this case gets left out of the ND Supreme Court case transcript. When Coca (my FiL) was denied consent to search the trunk he slapped his hands on the trunk and said something to the effect “Too bad, I’m searching anyway.” and the suspect started bouncing around in the back of the squad car like a hyperactive jack-in-box and also crying.

    https://www.ndcourts.gov/_court/briefs/20000114.aeb.htm

    • It sorta depends, don’t it?

      If that trunk contains a kidnap victim, then the testimony of the kidnappee would seem to be admissible although the discovery of the presence of that person might be barred.

      If the trunk contains a corpse it is hard to imagine a court being highly aggressive in denying its admission as evidence due to lack or warrant — there needs to be a “Peter, you got away with it this time but next time that wolf might eat you” provision for the law.

      If the trunk contains a bale of marijuana the pot might be inadmissible in court but still confiscatible … and would the fact that driver had been found to store reefer in his trunk now be established as probable cause for future searches?

      As with most matters involving people, there is a lot more grey than there is hard-line black and white areas for the law. It is a balancing act, and people like to keep trying to tip the balance to their favor.

      • Mike Houst

        A friend of mine works for the police department. The number of people who aren’t prosecuted for drug possession or use because of the call for help in an OD situation; but come to the police department to recover their seized drugs after discharge is both amazing, and extremely humorous.

    • Interesting. IANAL, nor do I play one on TV, but the court’s reasoning on the trunk search smells fishy to me, and not in a good way. Granted, the arrestee’s being put into custody was legit due to his running the red light and subsequent failure of the field sobriety test. Granted, the search of the vehicle’s passenger compartment was legit since it was incident to the arrest, especially since the arrestee had already admitted to a violation of another law (open container)*. The warrantless search of the arrestee’s trunk without permission, even though, again, the arrestee had admitted to the presence therein of illegal substances*, however, strikes me as an overreach regardless of the court’s position.

      It seems the court engages in a bit of sophistry here in opining, to paraphrase ‘The officer didn’t need a warrant to search, because he would have eventually searched and found the evidence anyway because he had probable cause to search which would have given him the basis for seeking a search warrant. So I guess we’ll just let him skip the middle steps.’ Please correct me if I have this wrong.

      IIRC, the warrantless search thing is supposed to be valid only in such ‘exigent circumstances’ as those in which there is a likelihood that evidence could be lost if action weren’t taken immediately. This would not seem to hold in this case, since the arrestee’s vehicle wasn’t going anywhere, except possibly to a police impound lot, certainly not before there would have been time to get a search warrant using the aforementioned probable cause.

      *NEVER TALK TO THE POLICE!

  13. One interesting aspect is that at least in MN, if the (potential) searcher asks “What do you have to hide?” That is itself considered a violation of the law. I recall there was a case about such some years back (2003) that made it to the MN Supreme Court and the Court ruled thus for traffic stops.

  14. snelson134

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

    Aime, I notice that you gloss right over this one little word. It’s rather an important one, since the search deemed reasonable is defined (or should be defined) differently when searching for a small jar containing enough bioagent to wipe out a city vs searching for a jar of pickles stolen from Wal-Mart. The government should have to show cause why that search was actually reasonable (ie, here’s the reason why we believed that the bioagent was there, and why it was time critical that we search without a warrant) but it really shouldn’t allow someone preparing a mass casualty attack to go free just because the proper paperwork wasn’t filled out.

    What defines reasonable to you and to the law?

    • Paul (Drak Bibliophile) Howard

      I remember reading that originally in English (and American Law), an officer of the Law didn’t need a warrant to search your property but if they did and found nothing, you could successfully sue the officer of the Law.

      What the warrant originally did was to protect the officer of the Law from you suing them if they found nothing.

      But what the Amendment was trying to prevent was harassment of citizens the officers of the Law getting warrants for “no good reasons” and thus could search the citizens’ property without consequences to the officers of the Law.

      The Amendment was saying to the officers of the Law “you better have very good reasons to search the property before you are given the warrant”.

      • Jeff Gauch

        One of the ways the Crown would harass its opponents was to grant general warrants to an area, allowing agents of the Crown to search any time, any where. The parts about warrants being specific was included to prevent that.

    • Yeah, that ‘unreasonable’ leaves a loophole big enough to drive a Bearcat carrying a SWAT team conducting a late night no-knock dynamic entry through. And that loophole is getting bigger all the time.

    • amiegibbons15

      No, I said in there that the court has said it is unreasonable without a warrant unless it fits into one of the exceptions. I just didn’t get into the exceptions in this post. Those are covered in another one on my blog.

  15. Unfortunately, it seems 4th Amendment juris’prudence’ lately is less an exercise of protection of the rights of the people and more a game of ‘what can we let the government get away with this week’. Drug dog ‘alerts’ (as interpreted, of course, by the dog’s handler). Infrared scans of houses looking for grow rooms. Etc., etc., et ad nauseam cetera.

    See, I am *not* focused solely on the 2nd Amendment when it comes to government encroaching on the Rights of the People.

    • more a game of ‘what can we let the government get away with this week’.

      With a nice simultaneous admixture of “how can we let this obviously guilty guy off the hook?” to complicate things.

    • Huh. I should have thought of that one when we were discussing Superman above. IR scanners are essentially the same thing as X-ray vision, if a bit cruder…

    • At this point in history, if the cops are searching your place you are pretty much done for. Either they are searching because they think you did something, or because you p1ssed them off and they’re showing you who’s boss. Could be incompetence, could be personal, or it could be political.

      In any event, the most important thing for you to be doing is not giving them a reason to shoot you. Such as talking, or moving in any way.

      Now, I know a lot of you guys think I’m a cop hater, but that is not the case. The thing is, cops these days are selected based on political and union criteria, and the public in a lot of places is no longer supporting them. Two separate issues that when taken together make for trouble.

      https://www.yahoo.com/news/police-us-murder-capital-solace-art-015828725.html

      That’s a story about Chicago cops using art as therapy to get over what they see every day.

      That guy is who is turning up at your front door with a warrant. He’s burnt out, he’s twitchy, he’s deeply damaged emotionally, and he’s terrified. He’s also armed, and he’s there with five other guys as badly off as he is. None of them give a single crap about you or your rights, they just want to make it home alive at the end of the shift. If you look at any of them funny, you will get shot.

      Those are the honest ones. That’s the best-case scenario.

      You do whatever they say, and you shut up. Later, after they leave you in the wreckage of your house, THEN you call your lawyer.

  16. The guy who taught my general law class in college said I’d make a good lawyer, esp if i went into con law.

    Was that an insult?

  17. Rich Rostrom

    No other country has the Exclusionary Rule.

  18. I solve the law problem by having the main character ignore the government. He can, so he does. He also solves the problem by giving them something big and shiny to look at.

    • One of the neat things about SF & F is you can invent your own laws, if far enough in the future or in fantasy land. But it has to be consistent. it can also be incredibly hard to get “right” so it sounds plausible.

      • Why should your fictional laws be consistent? American laws certainly aren’t…

        • Because readers wall inconsistent books. Alas, we cannot wall inconsistent legal codes and judicial philosophies.

        • They’re more consistent than capricious. For one I had to make a structure where one could bring accusation, and both bring oath helpers, but presenting a false accusation incurred a penalty. Anyone who wanted to present an accusation could file one with the coroner, and present his or her case before the sheriff in term of court. So when a man up for attempted murder had no oath helpers, he brought a plausible accusation against the constable in order to prevent execution. Due to the nature of both accusations, it couldn’t be ignored.

          Were it a society ruled by a strong man, he could have had the perpetrator executed out of hand. He might could also ignore the established legal structure if he could have squared it with the king. But the existence of a legal structure means that at least it has to look like it’s functioning, even it means gaming it. Throwing out a long standing legal structure has serious consequences beyond the case itself.

        • As a clue to the reader that it is fantasy?

        • It depends entirely on what you’re trying to convey. Certain real life gov’ts certainly don’t (or haven’t) even pretend to a system beyond “what I say goes”. Many of the nastier tyrannies do pretend – because they desire “legitimacy” in the eyes of someone out there. Some honestly try for justice, while missing the target (at least sometimes).

          So, in building your own world, you have to decide what you want to convey. The conflict required in a good story often requires that middle road (pretending to a system) so there’s something to fight against more than merely “return and kill the oppressor”. However, some pulp fiction of the early 20th century (I’m looking at you, Mr.s Howard and Burroughs) made great stories with that idea.

          As to “consistency” – it has to be internally consistent. It has to make sense within the story, not necessarily in the real world.

  19. Mark Alger

    The Constitution only protects you from the government violating your rights.

    People keep saying things like this, but I’ve read the whole Constitution, and to the best of my (admittedly senior) memory, it doesn’t say that anywhere in there.
    For exemplia gratia, why DOESN’T Google have a fiduciary duty to protect the sanctity of your search data?

    • Paul (Drak Bibliophile) Howard

      I’m not a lawyer but here’s my opinion.

      The Constitution describes the powers and limitations of our Federal Government.

      Thus the “Rights” mentioned are intended to be “What The Government Can Not Do”.

      Limitations on individuals and private organizations are established by regular law not by Constitutional law.

      • Mark Alger

        Yebbut. The Constitution (says so right there on the box) is the Supreme Law of the Land. And, as such, all statutes must comport with its provisions.

        And, if you read it with comprehension cranked to 11, the Fourth Amendment (as is most of the BoR) is pretty solidly universal and absolute.

        It doesn’t say (as, e.g., the First does) that “the government may not dot-dot-dot” Oh,no. It says, in absolute and universal terms, that the right of the people SHALL remain inviolate, save only common-sense (for certain values of “common”) provisions and ONLY those.

        Kind of implies — explies, actually — that NO actor may vitiate this right.

        I’ll admit that, failing in that regard (to comport with the Constitution, that is) is the fault of the statutes and thus the legislators, but the fact of the matter remains and a law-abiding person must behave accordingly.

        M

        • No. The Constitution only applies to the gov’t. Period. (Note the prevalence of “Congress shall make no law…” in the Bill of Rights.)

          Having said that, you (at least in the old days, when we still believed in things like “common law” and “natural law”) might have a right to a tort if a private individual or a corporate entity did the same sort of thing. Because those rights enshrined in the Constitution were derived (in the gov’t context) from Natural Law (or Common Law) that had existed for centuries (if not millennia). They basically took “the things you should not do to other people” and insisted the gov’t not do those things, either. Because gov’t (read King George) abused its power of the law to commit acts that would get an individual shot/beat up/run out of town on a rail by the town or village.

          The warrant issue is where the acknowledgement of the state’s power of the law comes into play. It’s basically a way of saying “look, the state has to enforce the law, and it might have to intrude upon your rights in order to do so, but we insist it be done fairly and with some recourse for abuses.”

  20. I’m coming late to the party but I actually spend about two hours yesterday in a class that discussed this in a particular context (play parties and travel to and from such).

    My big take away was I’m going to start to keep lots of things in bags and cabnits that lock and are routinely kept lock. Apparently it is another 4th amendment barrier as well as a theft deterrent.

  21. “You have the right to tell a cop asking you if he can search you or your place no.”
    One of the new techniques is to politely ask you (usually from the passenger side, it seems) if you mind if they lean into your car to talk with you. This gives them permission, so if they smell something (alcohol, mj, whatever) they now have probably cause. You can tell them “no” (or “yes, I do mind; please don’t lean in”).

  22. Byzantine_General

    So were you lying when you belittled my wikipedia cite or are you lying now?

    • Lie:
      lie2
      [lī]
      NOUN
      lies (plural noun)
      an intentionally false statement:
      Oxford Dictionaries · © Oxford University Press
      ********
      Your initial claim was:
      No, it was your stuff, I bought it, now it’s my stuff – and I don’t have to prove it! Now, you should know, that unlike a peace officer, you are personally liable to be sued if you unlawfully detain me.

      Your unliked wikipedia quote was:
      Shopkeeper’s privilege is a common law recognized in some parts of the United States under which a shopkeeper is allowed to detain a suspected shoplifter on store property for a reasonable period of time, so long as the shopkeeper has cause to believe that the person detained in fact committed, or attempted to commit, theft of store property.

      All unlinked quotes are above.

      • Paul (Drak Bibliophile) Howard

        Personally, I think it’s time to ignore BG’s posts.

        • I know we have at least two folks who post here who started out almost as badly– there’s a chance that he’ll figure out that, hey, you do actually have to support your claims, and the pissing contest of “no, listen to me, thou pissant!” will end.

          *shrug* Plus, hey, I’m nursing the Chief, not like it’s taking time from other important things.

          • Paul (Drak Bibliophile) Howard

            Hope the conversation won’t sour the Chief’s milk. 😀

            • *looks at the rolls* I think he’s safe. 😀

              Plus, he’s a red-head– about the only thing we have to worry about is the International Order of Cliche Suppression showing up. 😀

      • Byzantine_General

        Admittedly, parsing Wikipedia this tightly is ridiculous. At this point, it’s just a moot. Thus, my closing statement:

        The meaning of any text inheres not only in its words but in their distinctness from the infinite cloud of things that could have been said, but weren’t.

        How can one have cause to believe that the miserable miscreant in fact is shoplifting? By observing him doing so. Nothing else will do.

        To suspect is not to believe. “In fact is” is not “may be”. The text supports my claim. I rest my case.

        • Admittedly, parsing Wikipedia this tightly is ridiculous.

          Citing Wikipeida as a source, rather than using it as a way to find a source, is rediculous.

          So…why did you do it?

          Especially when it didn’t actually support your initial claim?

  23. Reblogged this on WyldKat's Lair and commented:
    I missed this when it was first posted, but there are some salient points here about Search and Seizure both for the writer and the citizen.

    Brava!