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SimpleSimon
Dead Horse Rider

Registered: Dec 2002
Location:
Posts: 28691
"Warrant? We don't need no fucking warrant!"

http://www.theneworleanschannel.com...483/detail.html

quote:
Court Opens Door To Searches Without Warrants



NEW ORLEANS -- It's a groundbreaking court decision that legal experts say will affect everyone: Police officers in Louisiana no longer need a search or arrest warrant to conduct a brief search of your home or business.

Leaders in law enforcement say it will keep officers safe, but others argue it's a privilege that could be abused.

The decision in United States v. Kelly Gould, No. 0230629cr0, was made March 24 by the New Orleans-based 5th Circuit Court of Appeals.

The ruling stems from a lawsuit filed in Denham Springs in 2000, in which a defendant filed a motion to supress information gleaned from a search of his home. The motion was granted by a district court, and the government appealed this decision. The March 24 ruling by the 5th Circuit is an affirmation of that appeal.

New Orleans Police Department spokesman Capt. Marlon Defillo said the new power will go into effect immediately.

"We have to have a legitimate problem to be there in the first place, and if we don't, we can't conduct the search," Defillo said.

But former U.S. Attorney Julian Murray said the ruling is problematic.

"I think it goes way too far," Murray said, noting that the searches can be performed if an officer fears for his safety.

Defillo said he doesn't envision any problems in New Orleans.

"There are checks and balances to make sure the criminal justce system works in an effective manner," Defillo said.


Warrantless searches. Oh. Well, we all knew that was coming.

quote:
U.S. Constitution:

Amendment IV

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.



Wastepaper. That is what it is becoming. Not even good for wiping your ass with, it's too stiff.

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Old Post 03-29-2004 04:57 PM
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nYmpHo_eNvy
*poof*

Registered: Feb 2004
Location:
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I need to expatriate ... and soon ... time to start searching the want ads for europeans who want american wives for ... sex slaves ... (and I hope they like dogs) ... to be serious for a moment. I find the erosion of my civil liberties extremely depressing and feel absolutely powerless to stop it.

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Old Post 03-29-2004 05:21 PM
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ponyslayer
pissing in the gene pool

Registered: Nov 2003
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Let me know once you find those sex slave ads! At least now I can tell everyone what I want for xmas then.

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Old Post 03-29-2004 05:25 PM
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lady sianna
starry-eyed siren

Registered: Aug 2001
Location: deep in the heart of...
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great goddess, these are frightening times indeed.

(as pointed out) that ruling is in direct opposition to the constitution. i maintain the hope that it will move further up the food chain to be spat out as the bile that it is.

if only canada weren't so damn cold...

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Old Post 03-29-2004 05:26 PM
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CHiPsJr
Ginger-headed Troll

Registered: Sep 2000
Location: Kansas City
Posts: 7511

I just don't get it at all.

It's legitimate to search without a warrant in the event that there's a legitimate danger of the evidence being moved or destroyed, or a concern regarding time or safety, but those exigencies are well-protected in case law.

There's NO other circumstances in which getting an actual warrant from an actual judge is a significant hurdle to a police investigation. The ONLY other circumstances in which warrantless searches benefit the police are circumstances in which a warrant would not be issued--which is kinda exactly the reason we have a warrant requirement written into the constitution, isn't it?

I just have no patience with this sort of thing anymore. These are the sort of encroachments over which revolutions are fought.

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Old Post 03-29-2004 05:43 PM
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Smug Git
Arrogance Personified

Registered: Aug 2001
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I'd say that most revolutions arise from disparities in wealth or more general status. Although not all.

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Old Post 03-29-2004 05:44 PM
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RiZZ
awsomeness incarnit

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; {

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Old Post 03-30-2004 12:10 AM
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mudded
+/-?

Registered: Aug 2001
Location: your liver
Posts: 7452

It is vital to the war on Terror.

Security first!!!

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Old Post 03-30-2004 12:15 AM
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madlucas
tv casualty

Registered: Nov 2001
Location: on the move
Posts: 1266

quote:
Originally posted by CHiPsJr
I just don't get it at all.


and I'm left speechless. I can not even begin to fathom how or why this was allowed to come into play and leaves nothing but a bad taste in my mouth.

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buddha's penis
has it all

Registered: Apr 2001
Location: 0.50
Posts: 10035

quote:
Originally posted by lady sianna
if only canada weren't so damn cold...


southwestern canada is not cold. it is a wonderland of social freedom and moderate climate. and also a lot of rain.

but on topic, this reminds me of the interrogation in catch-22. you must have done something wrong, because if you didn't you wouldn't be in trouble. i don't imagine this would stand up to supreme court scrutiny, would it?

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Old Post 03-30-2004 01:20 AM
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Paint CHiPs
Smartest Man in the World

Registered: Jul 2000
Location: Location Location
Posts: 26816

The principle already has.

This is why it's so important to fight these things at every turn, because if you start to decide that constitutional protections don't apply to EVERYBODY, the protections themselves start becoming entirely meaningless (and losing precedent). And, guess what, EVERYBODY also means terrorists.

This country has rapidly been shifting towards a "guilty until proven innocent" meme since 9-11 (had been going on well before then, but 9-11 was the kicker that sent the snowball down the hill). Obviously, if you're suspected of being a terrorist, legal protections don't apply to you because we hate your and your evil-doer kind. Then, they also technically apply to money laundering, so go after that as well. Then, if we allow extra law enforcement procedures for money laundering, how can we deny it for rape and murder and blah blah blah. It's exactly as BP calls it. There's a view in this country that since I haven't done anything wrong, I don't have anything to worry about, and the people that are getting in trouble must have done SOMETHING to deserve it, or why else would they be in trouble?

We can't let these things go unchecked.

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Old Post 03-30-2004 01:25 AM
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euphorbia
caustic milk - hybrid

Registered: Apr 2001
Location: behind the irony curtain
Posts: 19147

before I read the whole thing my reply was "surely the supreme court will do something about this? and if they fail to we should just burn it down.” but then I clicked the link and read on...



quote:


When officers went to question Gould, they were told he was asleep. The officers asked if they could look inside for Gould, and were allowed to enter.

The officers testified that that they believed a search of the home was necessary to ensure their safety, given the allegations by Gould's employee and Gould's criminal history, according to the Facts and Proceedings section of the 5th Circuit ruling.

Gould's bedroom door was ajar, and officers testified they peered inside and saw no one. Thinking Gould could be hiding, the officers looked in three closets. In one of the closets, the officers found three firearms, according to the Facts and Proceedings section of the 5th Circuit ruling.

Gould was found hiding outside the home a few minutes later. He was taken into custody and questioned about the guns. The officers asked for and received Gould's consent to search the home, with Gould signing a waiver of search warrant. Gould subsequently was arrested for allegedly being a felon in possession of firearms.


I was not aware that they needed a warrant if they had permission to enter the home, i thought a warrant was for uncooperative people so they could force their way inside.

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Old Post 03-30-2004 02:31 AM
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Klute
.

Registered: Feb 2004
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What a fucking embarasment.

Oh well. Long as the search is 'brief'.

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Old Post 03-30-2004 03:20 AM
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CHiPsJr
Ginger-headed Troll

Registered: Sep 2000
Location: Kansas City
Posts: 7511

quote:
Originally posted by euphorbia
When officers went to question Gould, they were told he was asleep. The officers asked if they could look inside for Gould, and were allowed to enter.

The officers testified that that they believed a search of the home was necessary to ensure their safety, given the allegations by Gould's employee and Gould's criminal history, according to the Facts and Proceedings section of the 5th Circuit ruling.



See, it is at the point that they decided they needed to search the home to ensure their safety that it became incumbent upon them to PHONE A JUDGE AND GET A WARRANT FAXED TO THEM.

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Old Post 03-30-2004 03:35 AM
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MstrG
The Talamasca

Registered: Jul 2000
Location: Upstate NY
Posts: 10440

Would that depend on whether they were searching for him?

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Old Post 03-30-2004 03:47 AM
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euphorbia
caustic milk - hybrid

Registered: Apr 2001
Location: behind the irony curtain
Posts: 19147

quote:
Originally posted by MstrG
Would that depend on whether they were searching for him?


I think he was joking?

I dunno.

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Old Post 03-30-2004 03:57 AM
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zim
-

Registered: Dec 2002
Location: Boston
Posts: 3119

quote:
"There are checks and balances to make sure the criminal justce system works in an effective manner," Defillo said.
not anymore there aren't.
quote:
Gould's bedroom door was ajar, and officers testified they peered inside and saw no one. Thinking Gould could be hiding, the officers looked in three closets. In one of the closets, the officers found three firearms, according to the Facts and Proceedings section of the 5th Circuit ruling.

Gould was found hiding outside the home a few minutes later. He was taken into custody and questioned about the guns. The officers asked for and received Gould's consent to search the home, with Gould signing a waiver of search warrant. Gould subsequently was arrested for allegedly being a felon in possession of firearms.
the problem there is he was confronted with an accusation based on information gained by a search of his home that was conducted with neither a warrant nor his permission. the fact that he later allowed a subsequent search is meaningless. the first one, on which they based the following one, was illegal.

i say 'was' because that's apparently changed.

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Old Post 03-30-2004 04:34 AM
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zim
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Registered: Dec 2002
Location: Boston
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http://caselaw.lp.findlaw.com/data2...0230629cr0p.pdf


okay, i'm takin a look through the actual finding.

1) they were given permission to search the trailer home with Dennis Cabral who lived in it with gould.

in relation to that, "The district court-without appellate challenge--found that "the officers' initial entry into the mobile home was legal, because they had the voluntary consent of a resident. However, Mr. Cabral had neither actual nro apparent authority to consent to the search of the master bedroom."

the court ruled that, "Because the 'protective sweep' was not conducted as an incident to arrest, however, the search of the closet in the master bedroom was illegal."

the ruling goes on to state that if, as they claim, the officers had been provided information that there were firearms in the mobile home, "the officers could have obtained a valid search warrant based on the information ... With tis information and the officers' knowledge that the defendant was a convicted felon, the officers should have obtained a search warrant for the mobile home and specifically for the master bedroom. Their failure to obtain a search warrant reduces the weight of the governmental interest in conducting a 'protective sweep' of the master bedroom, because a 'protective sweep' would have been unnecessary if the search were authorized by a search warrant." furthermore, the evidence shows that they were not provided with any information by the person who tipped them off relating to firearms in the trailer until after the arrest.

It states that an arrest that results FROM a 'protective sweep' is not considered incident to the protective sweep. Before the sweep there would be no reason for the arrest.


maybe this is the part the article is really refering to:

quote:
The Court concluded, "Our evaluation of the proper balance that has to be struck in this type of case leads us to conclude that there must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual crime."
quote:
the touchstone of the Fourth Amendment is reasonableness."
whose reason?

it goes on to form a distinction ... and perhaps create the concept of reasonableness here ... the defendant had a violent criminal history.

aha

quote:
Given these circumstances, the officers were reasonably concerned that, after being voluntarily admitted into the trailer by Cabral, they could be ambushed by Gould. Their concern could reasonably have heightened after Cabral told them Gould was sleeping, but they saw that he was not in his bed.
hrmn
quote:
In our view, this court would be well advised to consider en banc whether a reasonableness approach that balances a variety of relevant factors is perferable to the holding in Wilson. Nevertheless, this panel is bound to follow Wilson and therefore upholds the district court's determination that the evidence at issue here was not obtained pursuant to valid protective sweep.
read: this was not legal as a 'protective sweep,' however much the appeals court disagrees with the case law which forces them to make that decision.

apparely there's something called a "good faith exclusionary rule" whereby
quote:
evidence is not to be suppressed under the exclusionary rule where it is discovered by officers in the course of actions that are taken in good faith and in the reasonable, though mistaken, belief that they are authorized.
so evidence is permissible if the officers are mistaken and think they have a right to perform a search.
they go on to state that
quote:
to the extent the officers made a mistake of law, it coud not have been grounded in objective reasonableness, because it was clearly contrary to Wilson, which was then and had been for some six years the established law of this circuit and had (and has) not been limited or narrowed. Thus, we cannot conclude that the officers could have reasonably thought a protective sweep not incident to an arrest would be lawful.


basically, to sum up, as i said:
"It states that an arrest that results FROM a 'protective sweep' is not considered incident to the protective sweep. Before the sweep there would be no reason for the arrest." since here, there was no reason to arrest him except for the information that they gathered due to the sweep, the sweep was not valid.


to conclude they AFFIRMED the decision to have the evidence thrown the fuck out.




how the hell is THAT compatible with the news articles about this?

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Last edited by zim on 03-30-2004 at 05:36 AM

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Old Post 03-30-2004 05:29 AM
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3MTA3
Same Tired Monkey

Registered: Apr 2003
Location: I cant say I buy this completely,
Posts: 3062

Its not...nice work. And good job reactionary people who think the govt. is coming to get you every time they lock up some jackass felon with a violent history thats in possesion of firearms.

Why do you view law as it own ends? Its like everyone is hung up on the idea that the law is whats important...and not how it serves us. Whatever...I know Im crazy for having any faith in this horrible world thats obviously headed downhill at breakneck speeds...at least Im not paranoid.

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Old Post 03-30-2004 06:06 AM
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euphorbia
caustic milk - hybrid

Registered: Apr 2001
Location: behind the irony curtain
Posts: 19147

wow zim you did a great job there.

this is one of those times Id like to give someone points but we dont really have a point just for when someone makes a really good post. I guess it will have to be class?

kudos for going further than I think anyone else in this thread to inform yourself and get the situation straight.

a lot of people in this thread spoke of the importance of such matters but after their emotional post they threw the subject in the back of their mind as soon as they hit submit. shameful.

zim is the winner in this thread.
we need a new point category.


something like
"teh win" points
or
"aces" points
or something

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Old Post 03-30-2004 12:15 PM
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euphorbia
caustic milk - hybrid

Registered: Apr 2001
Location: behind the irony curtain
Posts: 19147

I also think this thread is a good example of one of my major frustrations with the political trend and I think there is a whole hell of a lot of what happened in this thread happening nation and even world wide. I think this thread is just a small sampling of said trends, even the smarter people are susceptible to it. all the claims that 9-11 are leading to reactionary mindlessness can be said on both sides of the issues. I think said reactions of the type seen above are more accepted and dare I say (just for paintchips) fashionable...and happening a whole hell of a lot.

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Old Post 03-30-2004 12:49 PM
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mudded
+/-?

Registered: Aug 2001
Location: your liver
Posts: 7452

*Dances mindlessly to tunes of sensationalist media*

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Old Post 03-30-2004 01:09 PM
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Trenchant_Troll
ad hominid

Registered: Mar 2004
Location: USA
Posts: 44581

quote:
Originally posted by mudded
It is vital to the war on Terror.

Security first!!!



Really?

"They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety."
- Benjamin Franklin.


If the details of this article are true, then this may justify the trepidation that the Left's canards about the Patriot Act(s) do not. Search of person and/or property are not anything to be trifled with or musch is at stake. While the Patriot Act(s) takes a rather common sense approach to the security issues that face us, this (if accurate) steps way over the line. I can think of no instance, other than during a report and investigation of a violent crime in progress that such a search can be justified without a warrant.

If we want to attack a more common and abused loophole for criminals, then we should re-examine the Miranda Law. No citizen has to be notified of any of their other rights, nor should they have to be. Knowing the law of the land and one's rights pertaining to them is the responsibility of us all. Besides, what American cannot recite the "Miranda" by rote, especially the criminals among us? To say that a crime was essentially not commited because officers failed to tell the suspect their rights as the accused is absurd. Put out public service commercials in English and Spanish that explain these rights if we must, but let us stop pretending that criminals don't know them.

Now, back to the issue of "warrantless" searches, keep your ears to the ground on this one -- and your powder dry.

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Old Post 03-30-2004 02:54 PM
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philjit
Arch-Enemy of Idealism

Registered: Jan 2002
Location: UK
Posts: 13056

We don't have Mirqanda right read to us in the UK. All you get told is:

"You do not have to say anything, but it may harm your defence if you do not mention when questioned something which you may later rely on in court. Anything you do say may be given in evidence."

In other words, if you stay silent through the interview and then pull a star alibi out of your arse in court the jury is within it's right to dismiss that alibi as dodgy.

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Old Post 03-30-2004 03:08 PM
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Smug Git
Arrogance Personified

Registered: Aug 2001
Location: Hilbert Space
Posts: 36297

That is the new warning, although it wasn't always so. Was it the Criminal Justice Bill that changed it (the modification of the right to silence)?

They also have to tell you what they are arresting you for, I think.

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