From: Brad Dolan <bdolan@use.usit.net>
Date: Fri, 10 Feb 95 05:05:09 PST
To: Black Unicorn <unicorn@access.digex.net>
Subject: Re: The question is moot: (Was: Not crypto, but scary.)
In-Reply-To: <Pine.SUN.3.91.950210010704.5527A-100000@access3.digex.net>
Message-ID: <Pine.SOL.3.90.950210075752.11373A-100000@use.usit.net>
MIME-Version: 1.0
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I've got a solution that everyone should love:

Let's go ahead and allow illegally obtained evidence - but let's
make it a capital offense for a law-enforcement officer to 
knowingly violate the 4th amendment.  

Strong 4th amendment protection and another wonderful death
penalty all in one!

Brad D.

On Fri, 10 Feb 1995, Black Unicorn wrote:

> 
> 
> With all the gafawing about the bill (666) which just flew by, and the 
> "Dem's" running off about how the constitution is being dismantled, I 
> thought I would cite some case law.
> 
> I direct your attention to _United States v. Leon_, 468 U.S. 897 (1984).
> 
> Justice White:
> 
> This case presents the question whether the Fourth Ammendment 
> exclusionary rule should be modified so as not to bar the use in the 
> prosecution's case-in-chief of evidence obtained by officers acting in 
> reasonable reliance on a search warrant issued by a detached and neutral 
> magistrate but ultimately found to be unsupported by probable cause.
> 
> [...]
> 
> The Fourth Amendment contains no provision expressly precluding the use 
> of evidence obtained by violation if its commands, and an examination of 
> its orgin and purposes makes clear that the use of fruits of a past 
> unlawful search or seizure "work[s] no new Fourth Amendment wrong."  The 
> wrong condemned by the Amendment is "fully accomplished" by the unlawful 
> search or seizure itself, and the exclusionary rule is neither intended 
> nor able to "cure the invasion of the defendant's rights which he has 
> already suffered."  The rule thus operates as "a judicially created 
> remedy designed to safeguard Fourth Amendment rights generally through 
> its deterrant effect, rahter than a personal constitutional right of the 
> person aggrieved."
> 
> [...]
> 
> First, the exclusionary rule is designed to deter police misconduct 
> rather than to punish the errors of judges and magistrates.  Second, 
> there exists no evidence suggesting that judges and magistrates are 
> inclined to ignore or subvert the Fourth Amendment or that lawlessness 
> among these actors requires application of the extreme sanction of exclusion.
> 
> [...]
> 
> [The exclusionary rule cannot be expected to deter objectively reasonable 
> law enforcement activity...]
> 
> This is particularly true, we believe, when an officer acting with objective
> good faith has obtained a search warrant from a judge or magistrate and acted
> within its scope.  In most such cases, there is no police illegality and this
> nothing to deter. It is the magistrate's responsibility to determine whether
> the officer's allegations estlablish probable cause and, if so, to issue a
> warrant comporting in form with the requirements of the Fourth Amendment.
> In the ordinary case, an officer cannot be expected to question the
> magistrate's probable-cause determination or his judgement that the form of
> the warrant is technically sufficent.  "[O]nce the warrant issues, there is 
> literally nothing more the policeman can do in seeking to comply with the 
> law."  Penalizing the officer for the magistrate's error, rather than his 
> own, cannot logically contribute to the deterrence of Fourth Amendment 
> violations.
> 
> END.
> ++++
> 
> The bill is really just a restatement.  This has been the state of the 
> law for 11 years now.
> 
> If the bill fails, the essence of the doctrine that everyone is concerned 
> about stands in any event.
> 
> The question is moot.
> 
> -uni- (Dark)
> 
> --
> 073BB885A786F666 nemo repente fuit turpissimus - potestas scientiae in usu est
> 6E6D4506F6EDBC17 quaere verum ad infinitum, loquitur sub rosa    -    wichtig!
> 
>