From: wfgodot@iquest.com (Michael Pierson)
Date: Fri, 10 Feb 95 04:55:05 PST
To: cypherpunks@toad.com
Subject: Re: The question is moot:
In-Reply-To: <Pine.SUN.3.91.950210010704.5527A-100000@access3.digex.net>
Message-ID: <AZrElu1u6tTT079yn@iquest.com>
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Black Unicorn <unicorn@access.digex.net> 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).


666 and 1984.  Talk about irony.

Let's see... Fourth Amendment:

 "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."

What part of "shall not be violated" does Justice White not get?


> Justice White:
>
> This case presents the question whether the Fourth Amendment
> 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."
>


Obscured in White's casuistry is the fact that if evidence from
improper searches can be admitted, then the Fourth Amendment itself
is largely made "moot."  White's "this shit don't stink" sophism
notwithstanding.


>  ... 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.


Uh Huh...


[ The rest of Justice White's police state apologia omitted.]


> 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.



This is actually one of the arguments that some proponents of the
bill were using during the House Floor Debate that I was watching on
CSPAN.  If this were the case, then I wondered: Why were they so
intent to pass the bill in the first place??

I don't think that the codification of this earlier Fourth Amendment 
evisceration in federal statute is something I would characterize as 
moot.  I would regard it as a pretty sickening development even if it 
only added insult to injury.  Unfortunately, I doubt that the 666 
seal of approval will fail to further contribute to the ongoing 
destruction of our rights to privacy and due process in this country.



- -Michael




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