4 ms·
And yet the fourth amendment says what it says. I'm prepared to agree to disagree with the Supreme Court on the subject, but the bill of rights is, to me, clear
by ISL 7y ago
And yet the fourth amendment says what it says. I'm prepared to agree to disagree with the Supreme Court on the subject, but the bill of rights is, to me, clear.
- meroes 7y agoI cant think of a single amendment that isn't qualified in some way. But kudos if you or someone takes an issue like this to the supreme court.
- lonelappde 7y agoIt's important to remember that Courts trade in Opinions not Facts. Their rulings have the force of law, but they aren't always correct, and indeed are often overturned. It's appropriate to have disagreement.
- roywiggins 7y agoThe fourth amendment just says searches have to be reasonable, not that they have to be done pursuant to a warrant. What counts as "reasonable" is very much not clear unless you look beyond the text. There's no evidence, for instance, that the fourth amendment was meant to prevent customs checks at the border. Inside the US, customs checks would be unreasonable searches, but at the border they have always been legal. Phone searches are nasty, invasive, and not like a customs check at all. That's why we have courts to distinguish them.
- ISL 7y agoIs a customs check reasonable without probable cause? I understand the pragmatic argument, but not the implicit presumption that an upstanding citizen would come home with contraband.
- roywiggins 7y agoThis court decision linked ends up concluding that CBP doesn't need a warrant, but they do need reasonable suspicion- a much lower standard- before performing a search. More than no suspicion, which is what CBP etc were claiming.
- Slippery_John 7y agoI wonder how much effect this will actually have. Will they count rejection of voluntary search as suspicion of wrongdoing?
- roywiggins 7y agoIt's a trial court opinion, so quite possibly not much, depending on what precedent gets set on appeal.
- hannasanarion 7y ago"reasonable suspicion" is a term of art, not a new thing that was just invented by the court. There is already an abundance of case law that explains what can count as reasonable suspicion and what can't. Refusing a voluntary search is not enough for reasonable suspicion. Here's an explanation of reasonable suspicion in comic form (part of a larger chapter on 4th amendment law): https://lawcomic.net/guide/?p=1833 https://lawcomic.net/guide/?p=1833
- nybble41 7y ago> The fourth amendment just says searches have to be reasonable, not that they have to be done pursuant to a warrant. The only reason it doesn't say that is that it's inherent in the term "warrant". A warrant is exactly the legal authority to use force on behalf of the government contrary to the rights which the law would normally guarantee, which is a prerequisite for performing any search or seizing any property (absent the owner's consent, of course). Any law purporting to authorize searches is a warrant, though not necessarily a constitutional one. There is no such thing as a legal search or seizure without a warrant. There are only unauthorized, and thus illegal, searches and seizures, and unconstitutional warrants. If "reasonableness" were enough on its own—in other words, if obtaining a warrant were not a necessary part of the process of conducting a search—there would never have been any reason to place further restrictions on the issuance of warrants, and the entire second half of the 4th Amendment would be void.
- roywiggins 7y agoI used "warrant" in the same sense that Wikipedia uses it in the context of searches. I could have been more specific and said "judicial warrant" or "court order." https://en.m.wikipedia.org/wiki/Search_warrant https://en.m.wikipedia.org/wiki/Search_warrant