Watch the police remove a Watertown family from their home, and then search it.

[Quiet]

 

[snd1t]

Lets be serious? I don't think you are looking at this in the correct light. They had all surrounding cities and state police involved, Swat teams, ATF, FBI, Homeland Security and National Guard. Units came down from NH and I believe other States as well. All looking for 1 person. Most logical people would consider that the "kitchen sink".

More like entire kitchen, bathroom and master bedroom as well

 

[OfficerObie59]

I continue to be amazed at the number of people who (theoretically, due to their participation in this firearms-friendly forum) support, or even strongly support, the 2nd Amendment, but don't give equal value to the protections guaranteed by the other amendments, and to their basis in Common Law dating back through centuries.

I don't disagree with you, but it's worth remembering the very text of the 2nd Amendment is absolute. The 4th Amendment is not.

 

[snd1t]

I don't disagree with you, but it's worth remembering the very text of the 2nd Amendment is absolute. The 4th Amendment is not.

How is the 4A any less absolute than 2A?

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.http://en.wikipedia.org/wiki/Fourth_Amendment_to_the_United_States_Constitution#cite_note-1

http://en.wikipedia.org/wiki/Fourth_Amendment_to_the_United_States_Constitution#cite_note-1

 

[josh2600]

You must spread some Reputation around before giving it to economist again

I am just loving your posts, spot on!!

.

 

[OfficerObie59]

<snip>

This kind of door-to-door search is patently un-Constitutional on its very face! There is NO WAY that they can be justified after having read the Constitution. Government has conditioned us to treat requests as demands, and treats our responses as if they had indeed demanded a certain action. "Would you mind stepping out of the car, sir?" "Would you roll down the window so we can talk?" "Would you open the truck, please?" "Would you please pull over there for a secondary inspection?"

What I bolded is patently incorrect. We may wish for that to be the law and for the Constitution to mean exactly that, and it may indeed be good policy, but that doesn't make it in-fact constitutionally protected.

Let's re-read what the Constitution says:

"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."

Let's focus on that phase: "The right of the people to be secure in their...houses...against unreasonable searches and seizures, shall not be violated..."

If the right applies to UNREASONABLE searches and seizures, then what's the law when one might be able to articulate where the search might actually be reasonable?

Here's how the courts analyze this: They first state that any warrantless search is presumptively unreaonable, and thus protected by the warrant provision. But that presumption can be rebutted given the circumstances. Ironically, one of the timeless examples courts have classically used to demonstrate this rebuttal in the absolute is a guy running around with a bomb.

This is the million dollar question, and I think may of you are missing the question here which is this: Whether or not the events in Watertown, MA on 4/19/13 were a reasonable searches, constituting an exception to the warrant requirment. To say all warrantless searches without exception are unconstitutional is simply wrong because it reads the word "unreasonable", as well as any logical inverse conclusions right out of the amendment. Now, we can debate whether these exceptions are abused, overused, or too expansive as that all falls under the heading of what is reasonable and what is not. But to say there is not excepetion ever is wrong. And if these events do not rise to that exception, I having a hard time finding any scenario that is.

Remember, just because we want something to be unconstitutional doesn't mean that it is. The liberals have done untold damage to the Constitution over the past 100 years by equating what they think is constitutional with what is right and just. Unfortunately, the two do not always align. And we do just as much damage and are just as unfaithful to our Constitution when we do the same thing with libertarian values. There is no living, breathing Constitution. It does not breathe libertarian air any more than it breathes the air of liberalism or social conservatism.

</rant>

 

[josh2600]

But i do know that if i get hassled by a LEO for something stupid, i now know who i'm blaming it on.

The LEO, I would hope.

 

[josh2600]

People have no idea what its like to be in a serious situation like the one in watertown

A bad guy on the loose? Seriously dude? Some people here have seen combat.

 

[Big Daddy 45acp]

A bad guy on the loose? Seriously dude? Some people here have seen combat.

If one bad guy can elicit that type of police response, then a half dozen trained combat veterans could shut down the entire state! If they had the right motivation of course...

 

[snd1t]

Let's re-read what the Constitution says:

"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."

Let's focus on that phase: "The right of the people to be secure in their...houses...against unreasonable searches and seizures, shall not be violated..."

If the right applies to UNREASONABLE searches and seizures, then what's the law when one might be able to articulate where the search might actually be reasonable?

I totally agree with your analysis right up to the point of what is reasonable and what is unreasonable.

Rather than bad case law built upon layer after layer of bad case law I think we need to instead refer back to historical equivalents from the colonial era, lead up to the revolution, the revolution itself and the ratification debates themselves.

Its really no coincidence that we don't see any federal case law on this subject really until the 20th century because for 150 plus years the Fed Gov was to a much larger degree properly restrained by the limits placed upon it by CONUS and the states.

Remember, CONUS really doesn't provide for any police authority to the fed gov and it wasn't until we saw a gross perversion of the size/scope of the fed gov at the turn of the 20th c and to a larger degree with the 17th amendment (unrestrained senate) and the perversion of the "interstate commerce clause" as a result of FDR.

So consider what the people that wrote and ratified CONUS what would have considered to be "Reasonable" and I believe that clearly the answer is what we saw in Boston does not fit the bill.

 

[Coyote33]

What if Hitler won? The point of your statement is that you called the cops to clear your house (THAT WAS NOT THE CASE IN NEWTOWN) YOU NEVER GIVE UP YOUR RIGHTS) now that it was ok to do this time you will see more of it

Each case or each time is different; and not everybody is the same.

The resources were pretty much infinite, the federal checkbook was opened and the complete disregard for expense went into full swing.
I'll bet that none of the responding cities and towns will be paying anything out of their own budgets for all the overtime or resources involved, its all going to come out of federal monies.
Anyone with any knowledge or proof to the contrary should post it.

Out of what budget will the payroll for this venture be paid? Did the federal government budget specifically for this sort of thing? I didn't think so. I think they should be held accountable, just like everyone else.

 

[FrugalFannie]

They did though. MA's kitchen sink apparently wasn't enough.

They had the NY PD cooking them lunch!!!

 

[snd1t]

Out of what budget will the payroll for this venture be paid? Did the federal government budget specifically for this sort of thing? I didn't think so. I think they should be held accountable, just like everyone else.

LOL

Does it matter?

Its going to come out of your pocket, your kids pockets and your grandkids pocket no matter which level of gooberment "foots the bill"

Its sorta like your local town politician crooning about how much "Grant Money" they brag about getting without pointing out that its just tax dollars coming out of your other pocket.

 

[RichM]

What I bolded is patently incorrect. We may wish for that to be the law and for the Constitution to mean exactly that, and it may indeed be good policy, but that doesn't make it in-fact constitutionally protected.

Let's re-read what the Constitution says:

Let's focus on that phase: "The right of the people to be secure in their...houses...against unreasonable searches and seizures, shall not be violated..."

If the right applies to UNREASONABLE searches and seizures, then what's the law when one might be able to articulate where the search might actually be reasonable?

Here's how the courts analyze this: They first state that any warrantless search is presumptively unreaonable, and thus protected by the warrant provision. But that presumption can be rebutted given the circumstances. Ironically, one of the timeless examples courts have classically used to demonstrate this rebuttal in the absolute is a guy running around with a bomb.

This is the million dollar question, and I think may of you are missing the question here which is this: Whether or not the events in Watertown, MA on 4/19/13 were a reasonable searches, constituting an exception to the warrant requirment. To say all warrantless searches without exception are unconstitutional is simply wrong because it reads the word "unreasonable", as well as any logical inverse conclusions right out of the amendment. Now, we can debate whether these exceptions are abused, overused, or too expansive as that all falls under the heading of what is reasonable and what is not. But to say there is not excepetion ever is wrong. And if these events do not rise to that exception, I having a hard time finding any scenario that is.

Remember, just because we want something to be unconstitutional doesn't mean that it is. The liberals have done untold damage to the Constitution over the past 100 years by equating what they think is constitutional with what is right and just. Unfortunately, the two do not always align. And we do just as much damage and are just as unfaithful to our Constitution when we do the same thing with libertarian values. There is no living, breathing Constitution. It does not breathe libertarian air any more than it breathes the air of liberalism or social conservatism.

</rant>

Obie, you're correct... I was seeing these searches as being unreasonable, and therefore to my eyes, they were prohibited. On further reflection, I'm more open to the possibility that at least some of the searches may have been permissible under the Constitution, especially when you start asking the question "If not under these circumstances, then under what circumstances would a search be reasonable?" I'd certainly like to see them be less threatening in nature... no need to search those who are not the suspect, and I'd hope that any other crimes discovered while searching for the suspect would be treated with strict scrutiny, and only prosecuted if they truly threatened life or limb of another (like they found Grandma chained in the basement)...

Thanks, Obie for your reasoned response. +1

 

[n1oty]

This is how the courts interpret the 4A now, but the founders were pretty clear in their original intent. The first part was a blanket prohibition against unreasonable searches. The colonists had been subjected to summary intrusions by the kings forces, who would enter houses and search property under general writs of assistance. This essentially granted the holders of a writ a whimsical ability to search anything or anybody without even needing a good reason. That is what prompted the adoption of 4A in our new nation.

The second part, "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", is the restraint placed upon our government if it does want to search a property. The government MUST articulate its probable cause, lay a foundation if you will.

Sadly, all of this deliberate twisting of 4A in this particular case has done NOTHING to advance the governments purpose, nor the purpose of the citizens. It made everyone a lot less safe as it contributed to a delay in actually finding the remaining fugitive. All those resources were utterly wasted. Thank God nobody else was injured or killed in the interim. In the end, real resolution of the case involved nothing more than an informed citizen spotting and reporting the fugitive bomber.

What I bolded is patently incorrect. We may wish for that to be the law and for the Constitution to mean exactly that, and it may indeed be good policy, but that doesn't make it in-fact constitutionally protected.

Let's re-read what the Constitution says:

Let's focus on that phase: "The right of the people to be secure in their...houses...against unreasonable searches and seizures, shall not be violated..."

If the right applies to UNREASONABLE searches and seizures, then what's the law when one might be able to articulate where the search might actually be reasonable?

Here's how the courts analyze this: They first state that any warrantless search is presumptively unreaonable, and thus protected by the warrant provision. But that presumption can be rebutted given the circumstances. Ironically, one of the timeless examples courts have classically used to demonstrate this rebuttal in the absolute is a guy running around with a bomb.

This is the million dollar question, and I think may of you are missing the question here which is this: Whether or not the events in Watertown, MA on 4/19/13 were a reasonable searches, constituting an exception to the warrant requirment. To say all warrantless searches without exception are unconstitutional is simply wrong because it reads the word "unreasonable", as well as any logical inverse conclusions right out of the amendment. Now, we can debate whether these exceptions are abused, overused, or too expansive as that all falls under the heading of what is reasonable and what is not. But to say there is not excepetion ever is wrong. And if these events do not rise to that exception, I having a hard time finding any scenario that is.

Remember, just because we want something to be unconstitutional doesn't mean that it is. The liberals have done untold damage to the Constitution over the past 100 years by equating what they think is constitutional with what is right and just. Unfortunately, the two do not always align. And we do just as much damage and are just as unfaithful to our Constitution when we do the same thing with libertarian values. There is no living, breathing Constitution. It does not breathe libertarian air any more than it breathes the air of liberalism or social conservatism.

</rant>

 

[ColdDayInHell]

People have no idea what its like to be in a serious situation like the one in watertown

 

[OfficerObie59]

I totally agree with your analysis right up to the point of what is reasonable and what is unreasonable.

Rather than bad case law built upon layer after layer of bad case law I think we need to instead refer back to historical equivalents from the colonial era, lead up to the revolution, the revolution itself and the ratification debates themselves.

I, like I suppose you are, am an ardent supporter of an originalist interpretation of the Constitution. And I think as well that case law is often wrong. That said, I think the analysis comes out differently here. Agree to disagree.

Its really no coincidence that we don't see any federal case law on this subject really until the 20th century because for 150 plus years the Fed Gov was to a much larger degree properly restrained by the limits placed upon it by CONUS and the states.

Remember, CONUS really doesn't provide for any police authority to the fed gov and it wasn't until we saw a gross perversion of the size/scope of the fed gov at the turn of the 20th c and to a larger degree with the 17th amendment (unrestrained senate) and the perversion of the "interstate commerce clause" as a result of FDR.

You're leaving out some very important factors and blurring the nuances.

First of all, the federal government clearly had police powers--they were just limited to the laws Congress could pass under Section 8 enumerated powers. While I would agree subsequent interpretation of the Commerce Clause culminating in Wickard (unconstituionally) expanded the police power, to say the Federal goverment really didn't have a police power until the New Deal era is incorrect. What they didn't have was a general or plenary police power, as the states do and have always had.

The reason we don't see 4th Amendment jurisprudence in Federal Courts until the New Deal has many other factors besides just an expansive Commerce Clause. First is sheer population growth, and thus lack of incidents. Second is the fact that until 1891, federal circuits didn't handle mulitple sets of cases at once. And lastly, most 4th Amendment jurisprudence has come from cases of state violations, post-Wolf v. Colorado in the late 1940's.

And the gross 4th Amendment perversion you speak of was actually based upon a totally constitutional Federal police power. It was called "Prohibition", which is really when the Fourth Amendment (as well as all the other criminal procedure amendments) really started to appear on Federal appelate dockets. What's interesting about tracking SCOTUS 4th Amendment cases during Prohibition is you can see a upside-down arc in cases with regards to the degree of freedom/lack of government deference show. The courts first stared reading the 4th Amendment as not providing a great deal of protection during prohibition. See Gouled v. United States (1921), Amos v. United States (1921), Burdeau v. McDowell (1921), Hester v. United States (1924), and Carroll v. United States (1925). In the mid-20's the court started to slow down the erosion. See Steele v. United States (1925), Dumbra v. United States (1925), Agnello v. United States (1925), Byars v. United States (1927), Gambino v. United States (1927), United States v. Lee (1927), Marron v. United States (1927), and Olmstead v. United States (1928). And in the late 20's started placing restrictions on the gov't, though at a level most here would still disagree with. See Go-Bart Importing Co. v. United States (1931), Husty v. United States (1931), United States v. Lefkowitz (1932), Taylor v. United States (1932), Grau v. United States (1932), Sgro v. United States (1932), and Nathanson v. United States (1933). Notably, it was also during Prohibition when Congress passed the law allowing SCOTUS to issue writs of certiorari so they could pick and choose their cases due to a huge docket. I would agree that drug cases, passed pursuant the Commerce power, have had similar negative effects on the federal docket (and have also eroded the quality of the federal judiciary), but to say that's the reason fails to consider many other factors at play.

So consider what the people that wrote and ratified CONUS what would have considered to be "Reasonable" and I believe that clearly the answer is what we saw in Boston does not fit the bill.

My question to you then becomes this: If searches in this instance (guy running around presumably armed with firearms and explosives, already having demonstrated he will use them indiscriminately on citizens) are unreasonable, then when would they be?

Certainly you don't think the word "unreasonable" is superfluous language by Madison. If you do, that seems to me to open the door to all sorts of other constitutional mischief by courts. In fact, 2nd Amendment advocates hear it all the time, with regards to a certain "curiously" misplaced comma.

 

[OfficerObie59]

This is how the courts interpret the 4A now, but the founders were pretty clear in their original intent. The first part was a blanket prohibition against unreasonable searches. The colonists had been subjected to summary intrusions by the kings forces, who would enter houses and search property under general writs of assistance. This essentially granted the holders of a writ a whimsical ability to search anything or anybody without even needing a good reason. That is what prompted the adoption of 4A in our new nation.

The Writs of Assistance were a blatant measure to assert government power for the simple sake of asserting government power. That's different from this April 19th where there was a legitimate public safety need.

We need to distinguish when a public saftey need is legitimate and when it's being used as an excuse for government to **** with people and flex it's muscle. I honestly don't think the cops were thinking "We need to get all these Watertown sheep in line and let the know who's boss." They wanted to catch Tsarnev. We can certainly be suspicious of police motives--indeed, that's healthy--but there's no basis to conclude these searches were covering up for some tyrannical animus. I think this is furthered by the fact I have yet to hear about any charges or arrests or charges of citizens stemming for shit the cops found or saw when they went around searching houses.

And WRT the part I bolded, again, if these searches were not reasonable, than what warrantless search would be?

The second part, "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", is the restraint placed upon our government if it does want to search a property. The government MUST articulate its probable cause, lay a foundation if you will.

Things like the community caretaking doctrine and exigencies are exceptions to the warrant requirment for the very reason they don't require any probable cause.

As I noted in the post you quoted, we can have a discussion in which I would agree these can and are sometimes abused, but I would agrue this is not one of those cases.

Sadly, all of this deliberate twisting of 4A in this particular case has done NOTHING to advance the governments purpose, nor the purpose of the citizens. It made everyone a lot less safe as it contributed to a delay in actually finding the remaining fugitive. All those resources were utterly wasted. Thank God nobody else was injured or killed in the interim. In the end, real resolution of the case involved nothing more than an informed citizen spotting and reporting the fugitive bomber.

I think you're suffering from confirmation bias here. Yeah, we all know that now, but we didn't at the time. Hindsight is always 20/20.

Let me pose this hypothetical. Suppose the cops found the bloody boat on their own, wrapped in weatherized wrap, and searched the boat either in the absence of or denial of consent by the homeowner. Any other day of the week, this conduct would require a warrant by the police. Would a warrantless search be reasonable here and do you personally believe such a search would be constitutional? And if not, why not?

 

[n1oty]

Blood would represent an exigent circumstance, in my view, that would enable the police to at least look within the boat. I could even accept the view that police could enter someone's house in this instance if there were some evidence of a problem in the search area, say something like a broken basement window, some sign of forced entry of the premises, a contacted resident plainly in distress. I can never condone simply barging into anyone's house without some expectation that this particular location will likely yield the person or objects of the search.

I think the bias I am bringing to this whole episode is my military training and experience, not all of which is comprised in my sig line. From the very beginning, I was convinced this was perpetrated by foreigners once the police and FBI identified the bombs as being made from pressure cookers. Pressure cookers are decidedly favored in many foreign countries, but really do not enjoy a lot of popularity by most Americans. The only part I am surprised by is the level of public assistance that this family received while some of them were on various terror watch lists. That has to be a new low that even I could not have anticipated before this. In my day, we maintained three lists of foreigners (white, black and gray lists). White were known friendlies, black were known enemies and gray were the unknowns. Obviously, the terror watch lists are handled a bit differently in this day and age.

I struggle with the whole concept of any need for wide dragnets or groping at airports for ordinary citizens under the guise of "need" or "public safety" when our own government has proven it will not or cannot keep the bad guys out of our homeland. What is the purpose of such kabuki theater as this dragnet?? Were the officers involved that deluded into thinking that they had a high likelihood of success in finding this guy by literally going through houses in Watertown??? Did they even feel like they had a likely chance of catching him in this manner???

If anyone on this particular operation could articulate a modicum of reasonable suspicion that the remaining bomber was in a particular house or in a cluster of a handful of houses, I could understand what we observed as probably being constitutional. That is certainly not what happened.

The Writs of Assistance were a blatant measure to assert government power for the simple sake of asserting government power. That's different from this April 19th where there was a legitimate public safety need.

We need to distinguish when a public saftey need is legitimate and when it's being used as an excuse for government to **** with people and flex it's muscle. I honestly don't think the cops were thinking "We need to get all these Watertown sheep in line and let the know who's boss." They wanted to catch Tsarnev. We can certainly be suspicious of police motives--indeed, that's healthy--but there's no basis to conclude these searches were covering up for some tyrannical animus. I think this is furthered by the fact I have yet to hear about any charges or arrests or charges of citizens stemming for shit the cops found or saw when they went around searching houses.

And WRT the part I bolded, again, if these searches were not reasonable, than what warrantless search would be?

Things like the community caretaking doctrine and exigencies are exceptions to the warrant requirment for the very reason they don't require any probable cause.

As I noted in the post you quoted, we can have a discussion in which I would agree these can and are sometimes abused, but I would agrue this is not one of those cases.
I think you're suffering from confirmation bias here. Yeah, we all know that now, but we didn't at the time. Hindsight is always 20/20.

Let me pose this hypothetical. Suppose the cops found the bloody boat on their own, wrapped in weatherized wrap, and searched the boat either in the absence of or denial of consent by the homeowner. Any other day of the week, this conduct would require a warrant by the police. Would a warrantless search be reasonable here and do you personally believe such a search would be constitutional? And if not, why not?

 

[OfficerObie59]

What is the purpose of such kabuki theater as this dragnet?? Were the officers involved that deluded into thinking that they had a high likelihood of success in finding this guy by literally going through houses in Watertown??? Did they even feel like they had a likely chance of catching him in this manner???

What was the precedent to conclude they weren't likely to catch him? It's not everyday you have a known bomber flee on foot in a residential neighborhood. In fact, I can't think of another time it's ever happened.

We know you may well be correct now. But that wasn't the case a little over a week ago. That's my point when I suggested confirmation bias.

 

[OfficerObie59]

Blood would represent an exigent circumstance, in my view, that would enable the police to at least look within the boat. I could even accept the view that police could enter someone's house in this instance if there were some evidence of a problem in the search area, say something like a broken basement window, some sign of forced entry of the premises, a contacted resident plainly in distress. I can never condone simply barging into anyone's house without some expectation that this particular location will likely yield the person or objects of the search.

I'd assume most of your fellow NESers disagree.

If anyone on this particular operation could articulate a modicum of reasonable suspicion that the remaining bomber was in a particular house or in a cluster of a handful of houses, I could understand what we observed as probably being constitutional. That is certainly not what happened.

The problem with this part becomes defining a limiting principle of your "cluster" or "handful of houses" . Is three okay? What about 10? 20? Where do you draw the line?

 

[dyer01905]

Fourth Amendment to the United States Constitution

 

[Deleted member 12999]

Hey.... I'm reading grown ups talking here... spare us Wikipedia.

 

[OfficerObie59]

Fourth Amendment to the United States Constitution

Believe it or not, we've actually been discussing that here for the past, oh, about 400 posts.

 

[Quiet]

I disagree with the premise of "if not this then what". There is no justification for shutting down an entire city, for imprisoning people in their own homes, for assaulting them and dragging them to the street, searching their persons and their homes. It was a giant fishing expedition that was unconstitutionally broad and invasive.

And my God, does no one in the entire region own a single bloodhound???

 

[snd1t]

I, like I suppose you are, am an ardent supporter of an originalist interpretation of the Constitution. And I think as well that case law is often wrong. That said, I think the analysis comes out differently here. Agree to disagree.


You're leaving out some very important factors and blurring the nuances.

First of all, the federal government clearly had police powers--they were just limited to the laws Congress could pass under Section 8 enumerated powers. While I would agree subsequent interpretation of the Commerce Clause culminating in Wickard (unconstituionally) expanded the police power, to say the Federal goverment really didn't have a police power until the New Deal era is incorrect. What they didn't have was a general or plenary police power, as the states do and have always had.

The reason we don't see 4th Amendment jurisprudence in Federal Courts until the New Deal has many other factors besides just an expansive Commerce Clause. First is sheer population growth, and thus lack of incidents. Second is the fact that until 1891, federal circuits didn't handle mulitple sets of cases at once. And lastly, most 4th Amendment jurisprudence has come from cases of state violations, post-Wolf v. Colorado in the late 1940's.

And the gross 4th Amendment perversion you speak of was actually based upon a totally constitutional Federal police power. It was called "Prohibition", which is really when the Fourth Amendment (as well as all the other criminal procedure amendments) really started to appear on Federal appelate dockets. What's interesting about tracking SCOTUS 4th Amendment cases during Prohibition is you can see a upside-down arc in cases with regards to the degree of freedom/lack of government deference show. The courts first stared reading the 4th Amendment as not providing a great deal of protection during prohibition. See Gouled v. United States (1921), Amos v. United States (1921), Burdeau v. McDowell (1921), Hester v. United States (1924), and Carroll v. United States (1925). In the mid-20's the court started to slow down the erosion. See Steele v. United States (1925), Dumbra v. United States (1925), Agnello v. United States (1925), Byars v. United States (1927), Gambino v. United States (1927), United States v. Lee (1927), Marron v. United States (1927), and Olmstead v. United States (1928). And in the late 20's started placing restrictions on the gov't, though at a level most here would still disagree with. See Go-Bart Importing Co. v. United States (1931), Husty v. United States (1931), United States v. Lefkowitz (1932), Taylor v. United States (1932), Grau v. United States (1932), Sgro v. United States (1932), and Nathanson v. United States (1933). Notably, it was also during Prohibition when Congress passed the law allowing SCOTUS to issue writs of certiorari so they could pick and choose their cases due to a huge docket. I would agree that drug cases, passed pursuant the Commerce power, have had similar negative effects on the federal docket (and have also eroded the quality of the federal judiciary), but to say that's the reason fails to consider many other factors at play.


My question to you then becomes this: If searches in this instance (guy running around presumably armed with firearms and explosives, already having demonstrated he will use them indiscriminately on citizens) are unreasonable, then when would they be?

Certainly you don't think the word "unreasonable" is superfluous language by Madison. If you do, that seems to me to open the door to all sorts of other constitutional mischief by courts. In fact, 2nd Amendment advocates hear it all the time, with regards to a certain "curiously" misplaced comma.

All good info.

But what would have the people that wrote, debated and ratified CONUS in each of our states found to be reasonable?

We have a couple of guys that were accused of a violent crime.....given it was a little more violent than many.

We have been told that they were throwing bombs at police but there's no evidence to support that.

Had the police witnessed him going into a property I was say absolutely reasonable.

To go door to door through several towns looking for the guy doesn't meet the threshold for reasonable......there's no evidence to believe that he is or is not in any given home/structure

Had the police exercised prudence and used dogs to track the guy (who was bleeding) and they led to a home then I'd say yes, that would be reasonable as there was evidence to support it

If we're going to suggest that this fits the bill of "reasonable" search then every time there's a rapist/violent criminal (ie every day) the police would be free to search every house/structure in an area and it would be considered to be "reasonable"

Given this, 4A would be worthless and would not comply with the intent of those that wrote it.

Remember, the powers granted to Gov, in particular the fed gov are extremely limited.....CONUS is an enumeration of those specific powers and the BOR is a reminder to the fed gov that they may not do certain things.

If we are going to err on the one side or the other clearly the historical record supports erring on the side of limited gov and liberty

 

[snd1t]

I disagree with the premise of "if not this then what". There is no justification for shutting down an entire city, for imprisoning people in their own homes, for assaulting them and dragging them to the street, searching their persons and their homes. It was a giant fishing expedition that was unconstitutionally broad and invasive.

And my God, does no one in the entire region own a single bloodhound???

Bulleseye

 

[snd1t]

I'd assume most of your fellow NESers disagree.


The problem with this part becomes defining a limiting principle of your "cluster" or "handful of houses" . Is three okay? What about 10? 20? Where do you draw the line?

What conditions would ever support the search of multiple different properties?

Clearly blood leading to a house would support a specific home/structure as would other examples where there's specific evidence.......dogs trained to track would be another example that may lead to one (or subsequently more) but I can't think of any set of circumstances that would ever result in anyone coming to the conclusion that a fishing expedition/searching multiple homes without actionable evidence would be considered to be "reasonable" by anyone that wrote/debated/ratified 4A or CONUS

I think we all know that the searches that occurred in the boston area failed to meet the notion of being reasonable.

There was no probably cause, there were no witnesses to attest to seeing the accused enter any of these property.......what we witnessed was historically referred to as a "general search".

No evidence to support = not reasonable

 

[snd1t]

We need to distinguish when a public saftey need is legitimate and when it's being used as an excuse for government to **** with people and flex it's muscle.

This notion of public safety is one that irks me to no end.

Clearly the Fed Gov wasn't granted power/authority to fabricate some notion of "public safety" let alone protect the public/individuals.

So what does the Mass Constitution say on the issue?

If I may take another step back I think we need to step back and consider the least common denominator here.

What is the purpose of Gooberment (at any level) and why did we citizens create it?

I think that anyone that is honest will agree that the function of gooberment is to "Protect Liberty, Freedom and Private Property Rights"

This is why our police up until the last couple decades were "Peacekeepers" as opposed to "Law Enforcement".

There's no such thing as "Public Safety".....its a cooked up expression that gooberment uses every time they feel a need to trample your liberty, freedom or private property rights.

Gov has no responsibility as we all know, to defend or protect an individual.......they do have an obligation/duty to keep the peace.

Separately, there was no "federal" crime committed here.....even using extreme legal gymnastics nothing in CONUS would possibly give the fed gov the power or authority to pass any law that would make what happened entirely within the confines of the state of Mass a federal crime.

 

[FrugalFannie]

LOL

Does it matter?

Its going to come out of your pocket, your kids pockets and your grandkids pocket no matter which level of gooberment "foots the bill"

Its sorta like your local town politician crooning about how much "Grant Money" they brag about getting without pointing out that its just tax dollars coming out of your other pocket.

Actually their pockets and mine are already emptied and promised out for the indefinite future. Our great grandkids and beyond will be paying for what we are doing today.