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Many if those posts are written by your favorite authority on this topic: you.
by loteck 9y ago
Many if those posts are written by your favorite authority on this topic: you.
- tptacek 9y agoThey all cite my second favorite authority: the United States Supreme Court. The Court heard cases --- more than one --- directly about this question.
- wnoise 9y agoYes, and you continue to mischaracterize them (in the opposite fashion that the ACLU does). While they don't completely negate the 4th amendment in this zone, they absolutely do negate it for stops at fixed checkpoints. The fourth amendment prohibits not just unreasonable searches (which Almeida-Sanchez addressed) but also seizures. The SCOTUS majority in Martinez-Fuerte basically says that because these seizures are helpful for CBP purposes, that they're reasonable, even without the normal requirements for individual, particularized suspicion: "Accordingly, we hold that the stops and questioning at issue may be made in the absence of any individualized suspicion at reasonably located checkpoints", where a footnote clarifies that "the choice of checkpoint locations is an administrative decision that must be left largely within the discretion of the Border Patrol". In theory this could be challenged, in practice not. Brennan's dissent, while leaning a bit heavily on dignity concerns for my tastes squares a lot better with 4th amendment case law prior to that term. No individualized suspicion needed makes parallel construction and other selective abuses far easier to apply to a large swath of people.
- pvg 9y agoWhile they don't completely negate the 4th amendment But that's what the post the reply was to claimed. And adding 'parallel construction' to this is a bit like throwing in black helicopters.
- wnoise 9y ago"Doesn't apply" can uncharitably be glossed as "doesn't apply at all" or charitably as "doesn't fully apply". Parallel construction has actually been attested and reported on by mainstream news sources. I hate the metonymy of "black helicopters". Helicopters that are painted black do exist, after all. It's merely that there is no reasonable evidence for their use in extralegal conspiracies. If you're going to dismiss something as a conspiracy theory, I'd rather you do that directly.
- pvg 9y agoThis is what it says: "That hasn't applied at or within 100 miles of a US border point of entry since 1953." The plain meaning of that is not 'doesn't apply fully and maybe sometimes applies and sometimes not'. There's a difference between 'charitable interpretation' and 'so charitable as to coincidentally be bent into something originally unsaid but happens to support my argument'. The goal of charitable interpretation is to avoid assuming ill-faith, not to reinterpret the position to something other than what it is.
- wnoise 9y ago"Opens a large hole in, allowing violations to large numbers of travelers at governmental discretion and thus doesn't usefully constrain the government against those in the area" is well within charitable interpretation of the quotation. Apparently small loopholes can be readily, repeatedly violated.
- pvg 9y agoApparently small loopholes can be readily, repeatedly violated. I... I think I'll never argue about anything on the internets again.
- tptacek 9y agoYou didn't read Martinez-Fuerte carefully, or the previous comments I linked to, which (amusingly) discuss Martinez-Fuerte in comparison to Almeida-Sanchez. In short: Martinez-Fuerte authorized stops within range of the border, but explicitly disallowed searches; what made the stop in Martinez-Fuerte lawful was that it wasn't a search. You can be stopped anywhere in the country with virtually no probable cause; it's what happens when a traffic cop pulls you over for a "bad lane change", or to check your insurance. When that happens, the police cannot then pop your trunk and rifle around in your glove compartment --- nor can they take and image your phone.
- wnoise 9y agoYou are reiterating my complaint about Martinez-Fuerte while stating that I didn't read it. Even stops that don't lead to searches are seizures that implicate the fourth amendment rights. Martinez-Fuerte acknowledges this, but then says "oh it's not that bad, and if the government has what it says is a compelling reason, go ahead." Bad lane change is explicitly probable cause -- it's direct witnessing of a traffic code violation. It's usually pretextual: they have some other reason they don't want to articulate that might not pass constitutional muster, but pretextual stops and even searches are unfortunately allowed. And no, they're not supposed to pull you over to check your insurance absent some reason to think that there's a problem with it. Stops without probable cause are bad not just because they are interruptions and wastes of time, but because they allow more opportunities for other abuses such as pretextual searches. Administrative checks for commercial trucking (i.e. weigh stations) would be a better instance for stops that no one generally complains about.
- tptacek 9y agoNo, a bad lane change is not probable cause for a search. How you know that is, upon being pulled over for improper lane change, the police cannot demand a search of your car. I think we're talking past each other. If you'd like to move the goal posts and talk about roadside detention, fine. But that's (a) not a search and (b) not relevant to the question of whether the border search exception means that tens of millions of Americans are continually exposed to warrantless searches of their devices by dint of living close to a border. (I didn't say you hadn't read Martinez-Fuerte; I said you hadn't read it carefully. A decent-sized stretch in the middle of the opinion is about exactly this distinction, and reaffirms the fact that LEOs can't search you within a 100 mile range of the country's border).
- arca_vorago 9y agoThe SCOTUS has been wrong, egregiously so, many times, and this overreliance on their views amplifies the very real problem of stare decisis and the bad precedents we allow it to set, especially when people confuse dictum (commentary) with order and findings. One of my favorite examples of this: Wickard v. Filburn
- bdowling 9y agoLaws passed by Congress and signed by the President can overrule the Court. And if the Court finds that the law is unconstitutional, Congress and the States can amend the Constitution. But who has time for all that?
- idlewords 9y agoYANAL