Comments on: The Fourth Amendment: Exceptional Or Fantastic?

By: jamie

jamie — Fri, 16 Jul 2010 12:36:25 +0000

Yeah, it’s kind of hard to tell, I know. I’m gonna try to start posting to it again, we’ll see…

By: B.W. Barnett

B.W. Barnett — Wed, 26 May 2010 11:53:10 +0000

Is Affirmative Links still going?

By: What's Wrong With Orin Kerr's "Technology Neutrality"? | Probable Cause

What's Wrong With Orin Kerr's "Technology Neutrality"? | Probable Cause — Tue, 27 Apr 2010 22:46:21 +0000

[...] writing as “Publius” (the writer of, among others, Federalist Paper No. 48; not the “Publius” I linked previously), said: It will not be denied that power is of an encroaching nature and that [...]

By: MailDeadDrop

MailDeadDrop — Mon, 26 Apr 2010 08:09:48 +0000

I think you’re missing the point Andrew. The D.C. Circuit decision doesn’t need Gant. They affirmed the suppression because the good-faith exception could not be applied because the officers lacked settled case law which matched the significant facts of Debruhl’s arrest. Quote:
Therefore, if Debruhl’s counsel had litigated his motion to suppress before Gant was decided, counsel might well have persuaded the Superior Court, and then this court, that on the facts here the law was unsettled in this jurisdiction; that Staten and Harris were therefore not controlling; and that in light of the case law from other jurisdictions reflecting Chimel’s limitation on Belton’s reach, Belton should not be read to permit the search of Debruhl’s car. (In this hypothetical case, of course, as explained in Part IV., the officers would have relied on a mistake of law, and the good-faith exception would not have applied.)
End quote.
It’s not that the search of Debruhl’s car was illegal because of the later SCOTUS Gant ruling, but that it was illegal because of existing law at the time of the arrest under Belton and Chimel.

By: Andrew MacKie-Mason

Andrew MacKie-Mason — Mon, 26 Apr 2010 00:59:21 +0000

The original author and commentators here may be interested in the decision by the DC Circuit in U.S. v. Debruhl, refusing to apply the good faith exception that searches committed prior to Arizona v. Gant but which are illegal under Gant (which narrowed the exception for vehicular searches incident to arrest).

Opinion is available here: http://legaltimes.typepad.com/files/debruhl-opinion.pdf

By: Orin Kerr's Fourth Amendment & The Internet: Foundations | Probable Cause

Sat, 24 Apr 2010 22:40:06 +0000

[...] and the Fourth Amendment. The article has been discussed by Scott Greenfield, Jeff Gamso, and “Publius”; the last name is a pseudonym “for any contributor [to Affirmative Links] who wishes to use [...]

By: Andrew MacKie-Mason

Andrew MacKie-Mason — Fri, 23 Apr 2010 23:26:44 +0000

Ishmael,

It’s universally understood that current Fourth Amendment law does absolutely nothing to prevent any searches? If that’s true, then those engaged in law are universally deluded.

By: Ishmael

Ishmael — Fri, 23 Apr 2010 22:52:10 +0000

Why do you guys care whether Andrew gets it, agrees with you, or comprehends any of this? You’re putting in an awful lot of work for nothing. Unless he’s Nino Scalia slumming, what difference does it make whether one goofball commenter understands what is universally understood by those engaged in criminal law? He’s too far behind the learning curve, and unwilling to do his own legwork, to be worth this much effort. Spend your time on something more worthwhile.

By: Andrew MacKie-Mason

Andrew MacKie-Mason — Fri, 23 Apr 2010 22:49:07 +0000

Quixote: the thing is, as I’ve said, I don’t disagree with you. I’m familiar with Safford v. Redding, and I agree that qualified immunity in that case was a bad application. I don’t and haven’t disagreed that there should be more restrictions on searches. All I’m saying is that your claims that the current state of the law provides no protection are clearly false and don’t actually help to solve the problem.

What we need is not to invalidate a century of law and start over, as your claims suggest. We need to work with what we have and improve it. Unbelievable claims that it’s worse than it is won’t fix anything.

And sorry for mixing up 1983 and 1984. I’m on a mobile device right now and didn’t have time to look it up.

By: Quixote

Quixote — Fri, 23 Apr 2010 22:32:38 +0000

You keep missing the point.

The problem isn’t with the 4th Amendment. The Amendment’s just fine. The problem is with its application. The courts have created so many exceptions to it that officers can pretty much do whatever they want with impunity. And where they don’t have impunity, they generally have immunity so that the theoretical lawsuits (that’s Section 1983, not 1984) for invasion of civil rights are nearly impossible to win even in the face of gross violations.

Need an example. Look at the case of Savana Redding. She’s the girl who was strip searched by her school because it was alleged (falsely as it happens) that she might have possessed a Tylenol.

She sued and won. The case went all the way to the Supreme Court which said (and I’m summarizing now, but you can read the whole opinion), Gee, it’s too bad. Your civil rights were violated by that unconstitutional search. But you know, the school officials who did that too you couldn’t have known with 100% certainty that we’d say it was unconstitutional, so you can’t recover any damages and your lawyers don’t get any attorney fees and, well, life’s tough. You probably shouldn’t have let yourself get falsely accused like that.

Again, it’s not the Fourth Amendment that needs to be fixed. It’s the application.