4 ms·

Also, the court has gone out of its way over the past 70 or so years to carve out standards protecting and empower police which aren't outlined anywhere in stat

Also, the court has gone out of its way over the past 70 or so years to carve out standards protecting and empower police which aren't outlined anywhere in statute or the constitution. For example, Terry v. Ohio establishes a standard of "reasonable suspicion" which the court practically just made up. Another is Gonzales v. Raich In which the court decided the federal government can sieze, destroy and regulate marijuana grown for personal medical use because the 4th amendment allows the federal government to regulate interstate trade. And one person's personal supply would prevent them week my it on the interstate market. That's like saying the federal government can stop your grandma knitting a cap for your baby because it affects the interstate baby clothes trade. Talk about activist judging. That reasoning is two sizes too small. People like to believe there is an umpire at the end of the day that can "objectively" interpret law. It's why textualism and originalism have become so popular. The idea is comforting. But like most decisions everyone makes, the justices feel, decide and justify in that order.

JumpCrisscross 6y ago
> Terry v. Ohio establishes a standard of "reasonable suspicion" which the court practically just made up Terry turned on the interpretation of the word "unreasonable."Prior to that, the "fruit of the poisonous tree" doctrine, which prevents illegally-collected evidence from being used in court, another interpretation, would have prevented a cop searching-and-seizing an M-16 on Broadway from arresting, charging and convicting its surreptitious holder. I think the Court erred in this. But it was far from wanton judicial activism. (Which to be fair the Court has engaged in.) > there is an umpire at the end of the day that can "objectively" interpret law Of course the Courts aren't objective. Law isn't code. That doesn't mean we can strive for them to be, as much as they can be.
- michaelt 6y ago
  I agree it's absurd that you could find someone with an illegal weapon and not be able to arrest them. But it's equally absurd to interpret the fourth amendment as merely requiring a cop to say they 'thought they smelled weed' for the entire amendment to be nullified.
  - mcny 6y ago
    I don’t think it is quite obvious whether you can charge someone with an illegal weapon you found. If the search is illegal, I’d say the officer must answer for it. The officer, not the suspect with the illegal weapon, must go to prison. I too can probably find at least one person with something illegal if I stop everyone and search them for no reason. Worse, I’ve heard people ask if the police has a search warrant before allowing them to search their cars on a traffic stop be subjected to many hours of being stopped by the side of a highway followed by a K-9 unit which scratches the whole car based on where the handler taps on the car. The officer doesn’t care because they get paid for the whole time they are there. What about the car driver and other occupants though? What if you are on your way to work and fired because you are late because the police stopped you? Why don’t I deserve to get paid for my wasted time?
  - DubiousPusher 6y ago
    Everyone agrees with that. What we don't agree about is what is an acceptable way for police to "find" a perpetrator within their right under the constitution.
- DubiousPusher 6y ago
  > I think the Court erred in this. But it was far from wanton judicial activism. I didn't say it was. I said that about Gonzalez v. Raich. Terry though is a perfect example of how legislating from the bench is basically unavoidable. The constitution doesn't outline what a search without a warrant should look like. The court could say, we don't care leave it to statute. But likely any state statute would be challenged on the grounds that it was permissive beyond what is "reasonable". So they'll just get the problem back in another form. They could say, this needs an amendment but what is to be done in the meantime? So they are stuck. They either have to say, "no warrantless search is "reasonable". Or they have to start defining a standard under which a warrantless search is "reasonable". Either way, they are effectively writing law. They have to take non-specific language and interpret it to a specific incident. It is exactly the kind of canard they faced in the case linked here. Bullets aren't a literal search or seizure but obviously the constitution doesn't intend to allow a cop to shoot you with impunity because that's not a "search or seizure". Shootings have to be governed by the "reasonable searches or seizures" doctrine cause there isn't anything else. If this case is activism as the poster I replied to implied then so is Terry. The call just came down on the other side this time. It's not way out there to ask a cop to think, "there might be multiple reasons why this person is speeding away from me now and it is not 'reasonable' to assume they are armed and dangerous and need to be shot." And grouping the polices's right to use deadly force under the 4th amendment isn't either. It's my opinion that neither this case, nor Terry is particularly "activist". > Of course the Courts aren't objective. Law isn't code. That doesn't mean we can strive for them to be, as much as they can be. This is exactly my point. We can ask for Some people are just going to call every decision they don't like activist. But the implications from a case like Terry or this one are clear; judges have to engage in something a little more than literal readings of legal text.
  - nybble41 6y ago
    > The constitution doesn't outline what a search without a warrant should look like. Only because a search without a warrant is by definition not backed by any legal authority, and without legal authority the only way they get to do the search is with the owner's permission. A "search warrant" is nothing more or less than legal authorization to perform the search—whatever form that authorization might take. Any law authorizing a search would itself be a warrant (though perhaps an unconstitutional one), which implies that a law authorizing "warrantless searches" would be self-contradictory.

JumpCrisscross 6y ago

> Terry v. Ohio establishes a standard of "reasonable suspicion" which the court practically just made up Terry turned on the interpretation of the word "unreasonable."Prior to that, the "fruit of the poisonous tree" doctrine, which prevents illegally-collected evidence from being used in court, another interpretation, would have prevented a cop searching-and-seizing an M-16 on Broadway from arresting, charging and convicting its surreptitious holder. I think the Court erred in this. But it was far from wanton judicial activism. (Which to be fair the Court has engaged in.) > there is an umpire at the end of the day that can "objectively" interpret law Of course the Courts aren't objective. Law isn't code. That doesn't mean we can strive for them to be, as much as they can be.

michaelt 6y ago
I agree it's absurd that you could find someone with an illegal weapon and not be able to arrest them. But it's equally absurd to interpret the fourth amendment as merely requiring a cop to say they 'thought they smelled weed' for the entire amendment to be nullified.
- mcny 6y ago
  I don’t think it is quite obvious whether you can charge someone with an illegal weapon you found. If the search is illegal, I’d say the officer must answer for it. The officer, not the suspect with the illegal weapon, must go to prison. I too can probably find at least one person with something illegal if I stop everyone and search them for no reason. Worse, I’ve heard people ask if the police has a search warrant before allowing them to search their cars on a traffic stop be subjected to many hours of being stopped by the side of a highway followed by a K-9 unit which scratches the whole car based on where the handler taps on the car. The officer doesn’t care because they get paid for the whole time they are there. What about the car driver and other occupants though? What if you are on your way to work and fired because you are late because the police stopped you? Why don’t I deserve to get paid for my wasted time?
- DubiousPusher 6y ago
  Everyone agrees with that. What we don't agree about is what is an acceptable way for police to "find" a perpetrator within their right under the constitution.
DubiousPusher 6y ago
> I think the Court erred in this. But it was far from wanton judicial activism. I didn't say it was. I said that about Gonzalez v. Raich. Terry though is a perfect example of how legislating from the bench is basically unavoidable. The constitution doesn't outline what a search without a warrant should look like. The court could say, we don't care leave it to statute. But likely any state statute would be challenged on the grounds that it was permissive beyond what is "reasonable". So they'll just get the problem back in another form. They could say, this needs an amendment but what is to be done in the meantime? So they are stuck. They either have to say, "no warrantless search is "reasonable". Or they have to start defining a standard under which a warrantless search is "reasonable". Either way, they are effectively writing law. They have to take non-specific language and interpret it to a specific incident. It is exactly the kind of canard they faced in the case linked here. Bullets aren't a literal search or seizure but obviously the constitution doesn't intend to allow a cop to shoot you with impunity because that's not a "search or seizure". Shootings have to be governed by the "reasonable searches or seizures" doctrine cause there isn't anything else. If this case is activism as the poster I replied to implied then so is Terry. The call just came down on the other side this time. It's not way out there to ask a cop to think, "there might be multiple reasons why this person is speeding away from me now and it is not 'reasonable' to assume they are armed and dangerous and need to be shot." And grouping the polices's right to use deadly force under the 4th amendment isn't either. It's my opinion that neither this case, nor Terry is particularly "activist". > Of course the Courts aren't objective. Law isn't code. That doesn't mean we can strive for them to be, as much as they can be. This is exactly my point. We can ask for Some people are just going to call every decision they don't like activist. But the implications from a case like Terry or this one are clear; judges have to engage in something a little more than literal readings of legal text.
- nybble41 6y ago
  > The constitution doesn't outline what a search without a warrant should look like. Only because a search without a warrant is by definition not backed by any legal authority, and without legal authority the only way they get to do the search is with the owner's permission. A "search warrant" is nothing more or less than legal authorization to perform the search—whatever form that authorization might take. Any law authorizing a search would itself be a warrant (though perhaps an unconstitutional one), which implies that a law authorizing "warrantless searches" would be self-contradictory.