tag:blogger.com,1999:blog-5945843206427351559.post2549578741629303551..comments2024-01-25T14:51:13.377-05:00Comments on Gamso - For the Defense: The Fourth What?Jeff Gamsohttp://www.blogger.com/profile/09869425697771419546noreply@blogger.comBlogger7125tag:blogger.com,1999:blog-5945843206427351559.post-45546705770731932992010-04-27T01:37:43.996-04:002010-04-27T01:37:43.996-04:00Might stop the searches. Might also get you kille...Might stop the searches. Might also get you killed. And certainly, if you survived, you'd be prosecuted. And they'd find a way to make sure you were convicted.<br /><br />More work for me, but not particularly healthy for you.Jeff Gamsohttps://www.blogger.com/profile/09869425697771419546noreply@blogger.comtag:blogger.com,1999:blog-5945843206427351559.post-34739035368425475252010-04-27T01:28:15.769-04:002010-04-27T01:28:15.769-04:00personaly i think we could end all the problems ov...personaly i think we could end all the problems over illegal searchs with a simple procedure.<br /><br />Anytime law enforcment try to come into your home and they are not on the tail of someone they are chasing though your door or don't have a search warrant in their head.<br /><br />put a bullet through there head like you would any other armed individual coming into your home unannounced.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5945843206427351559.post-47336772112772184882010-04-26T10:05:53.359-04:002010-04-26T10:05:53.359-04:00Rick, are you talking about where the Fourth Amend...Rick, are you talking about where the Fourth Amendment applies or where the exclusionary rule applies?<br /><br />Correct me if I'm wrong, but I believe the exclusionary rule would apply in the following circumstances, would it not?<br /><br />* The police search someone's mail without a warrant.<br />* The police detain someone on the street and force them to empty their pockets or go through a bag.<br />* The police continue to search a building or vehicle after a suspect has been safely detained.<br />* The police tap a phone line without a warrant.<br />* The police detain a person at a traffic stop longer than is necessary so that drug dogs can arrive.<br />* The police or school officials conduct random drug searches of students' belongings or persons.<br /><br />I could go on, but I'd be interested in your reaction to this limited list first.Anonymoushttps://www.blogger.com/profile/06069110453692862092noreply@blogger.comtag:blogger.com,1999:blog-5945843206427351559.post-33531646739125522162010-04-26T08:23:40.260-04:002010-04-26T08:23:40.260-04:00In California, it is easier to list the times the ...In California, it is easier to list the times the Fourth will apply than to list the exceptions.<br /><br />There appears to be only one set of circumstances where it applies: if law enforcement searches a home without consent and without warrant where there is not the remotest chance of exigent circumstances and the homeowner has standing as well as sufficient credible (to the court) witnesses to convince a judge beyond a reasonable doubt that all conditions in this sentence were met.<br /><br />Note that this excludes all vehicle searches. <br /><br />Yep. I think that pretty much covers it.Rick Horowitzhttp://www.rhdefense.com/blognoreply@blogger.comtag:blogger.com,1999:blog-5945843206427351559.post-54533878773420584212010-04-24T22:58:07.502-04:002010-04-24T22:58:07.502-04:00And, please forgive the addendum. I apologize for ...And, please forgive the addendum. I apologize for not realizing that you write as Quixote on Affirmative Links. I have been reading there regularly but can't keep track of everything.Anonymoushttps://www.blogger.com/profile/06069110453692862092noreply@blogger.comtag:blogger.com,1999:blog-5945843206427351559.post-70477717371689257802010-04-24T22:53:02.067-04:002010-04-24T22:53:02.067-04:00So, to sum up: I agree with Publius that there are...So, to sum up: I agree with Publius that there are too many exceptions to the Fourth Amendment, but I suggested, rather innocuously, that laments over the "dead" Fourth Amendment aren't as useful as pointing out specific problems in the jurisprudence. In response, several other commentators (particularly Quixote) extended Publius' view to the absurd length not that the exceptions are going too far but that they have gone all the way so that nothing is covered by the Fourth anymore.<br /><br />Throughout, my main point has been exactly that this kind of debate isn't useful. Trying to generalize too much about the exceptions to the Fourth leads to baseless claims that nothing is ever excluded anymore. Starting from a premise so contrary to fact won't actually get us anywhere towards a solution.<br /><br />Unless, that is, one takes the view that there should be no exceptions to the exclusionary rule, which I think is a different position than Publius or the other commentators were taking. If you'd like to debate that, separate from the other issues, I would be thrilled.<br /><br />I apologize that this didn't end up being brief. Thanks for your time and thoughtfulness. And if you address anything to me in the future I'd appreciate a heads up at drewmm@gmail.com. Thanks!Anonymoushttps://www.blogger.com/profile/06069110453692862092noreply@blogger.comtag:blogger.com,1999:blog-5945843206427351559.post-47424196470828591002010-04-24T22:52:32.485-04:002010-04-24T22:52:32.485-04:00Mr. Gamso, I appreciate the comments. If you will ...Mr. Gamso, I appreciate the comments. If you will allow me, I'd like to make a brief response.<br /><br />"Not, however, to Andrew MacKie-Mason who said in a comment that Publius was pursuing the issue improperly. Instead of how much the Fourth has been eroded, AM-M wanted a specific list of bad exceptions."<br /><br />At this point, you understood what I'm getting at. I don't think that rhetorical laments over the "death" of the Fourth Amendment will actually accomplish anything, because it's not actually dead and does retain at least a measure of its authority. Critiques of the ways it has been narrowed will be much more useful in terms of making the law better.<br /><br />"Now he's unhappy that Quixote hasn't explained how to improve the Fourth Amendment and has only provided examples and argument rather than analysis of just what's wrong with each of the dozens of exceptions."<br /><br />This actually misrepresents the exchange between Quixote and I. My problem with Quixote's examples was not that he made them (in fact, examples are exactly what I think are useful) but that he tried to use the examples to prove something that couldn't logically be deduced from those examples.<br /><br />Quixote and others were trying to use a catalog of exceptions as proof that there is no situation left where the Fourth Amendment applies. The fact is, as I pointed out in the Affirmative Links thread, that no matter how long a list of exceptions you can think of, that proves nothing about how many searches are actually excluded from Fourth Amendment protection. You can't look at exceptions without comparing it to the original domain to determine how significant the exceptions actually are.<br /><br />You then go into a long bit of trying to show how the Fourth Amendment is toothless, but don't actually show it. Your tagline says that you are a criminal defense lawyer. Have you lost every single motion to suppress under the Fourth Amendment that you've fired? In my limited experience, I've seen multiple such motions granted.<br /><br />As I believe I made clear over at Affirmative Links, I don't think that Fourth Amendment jurisprudence is in the place it should be. I don't think we should have as many exceptions to the exclusionary rule as we have. But I do think it's ludicrous to try to make the issue seem worse than it is by claiming that nothing is ever excluded under the Fourth now.<br /><br />"Really, isn't this the point: There shouldn't be any exceptions. I mean, you can talk all you want about whether the exclusionary rule is or isn't the only meaningful check on Fourth Amendment violations (at least, until the law of constitutional torts is completely rewritten. But the language of the Fourth Amendment doesn't include "with exceptions to catch seriously bad guys or when it just seems out of whack to apply these rules." The language of the Fourth is unequivocal"<br /><br />Here, you're confusing exceptions to the Fourth Amendment with exceptions to the exclusionary rule. I was under the impression that we were talking about the latter. There is nothing in the language of the Fourth Amendment that says that all violations of the Amendment should be remedied by exclusion. In fact, exclusion of evidence in criminal trials isn't even mentioned in the text of the Amendment.<br /><br />So, you can argue that there shouldn't be any exceptions to the exclusionary rule. I would probably disagree, though I would agree that there are currently too many exceptions. But all of that is irrelevant and tangential to the debate at Affirmative Links that you say you're responding to.Anonymoushttps://www.blogger.com/profile/06069110453692862092noreply@blogger.com