Supreme Court Limits Warrantless Car Searches

[Winehole23]

Supreme Court Limits Warrantless Car Searches (http://www.washingtonpost.com/wp-dyn/content/article/2009/04/21/AR2009042102125.html)

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Changing a long-standing rule, the justices ruled that police cannot routinely search a suspect's car after an arrest. (The Washington Post)

(http://pictopia.com/perl/gal?provider_id=25&ptp_photo_id=xt-mt-25-title_520752)
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Changing a long-standing rule, the justices ruled that police cannot routinely search a suspect's car after an arrest. (The Washington Post)

(http://pictopia.com/perl/gal?provider_id=25&ptp_photo_id=xt-mt-25-title_740059)

http://media3.washingtonpost.com/wp-srv/story/image/slideshow_bot.gif


By Robert Barnes (http://projects.washingtonpost.com/staff/email/robert+barnes/)


Washington Post Staff Writer

Wednesday, April 22, 2009



The Supreme Court yesterday sharply limited the power of police to search a suspect's car after making an arrest, acknowledging that the decision changes a rule that law enforcement has relied on for nearly 30 years.



In a decision (http://www.supremecourtus.gov/opinions/08pdf/07-542.pdf) written by Justice John Paul Stevens, an unusual five-member majority said police may search a vehicle without a warrant only when the suspect could reach for a weapon or try to destroy evidence, or when it is "reasonable to believe" there is evidence in the car supporting the crime at hand.



The justices noted that law enforcement for years has interpreted the court's rulings on warrantless car searches to mean that officers may search the passenger compartment of a vehicle as part of a lawful arrest of a suspect. But Stevens said that was a misreading of the court's decision in New York v. Belton in 1981.



"Blind adherence to Belton's faulty assumption would authorize myriad unconstitutional searches," Stevens said, adding that the court's tradition of honoring past decisions did not bind it to continue such a view of the law. "The doctrine of stare decisis does not require us to approve routine constitutional violations."



Stevens was joined by two of his most liberal colleagues -- Justices David H. Souter and Ruth Bader Ginsburg -- and two of his most conservative -- Justices Antonin Scalia and Clarence Thomas.



The decision overturned a three-year prison sentence for Arizonan Rodney Gant, who had been convicted of cocaine possession. Police found the drug in a search of his car after his arrest for driving with a suspended license. Gant had walked away from his car when he was arrested, and he sat handcuffed a distance away while police searched his vehicle.



"Police could not reasonably have believed either that Gant could have accessed his car at the time of the search or that evidence of the offense for which he was arrested might have been found therein," Stevens wrote.



Justice Samuel A. Alito Jr., writing for the four dissenters, said the court's insistence that its precedents had been misinterpreted was simply a cover for getting rid of a decision with which it disagreed.



He said the replacement of what had been an easy-to-understand "bright line" rule for police "is virtually certain to confuse law enforcement officers and judges for some time to come."



The court's new rules will endanger arresting officers, he said, and "cause the suppression of evidence gathered in many searches carried out in good-faith reliance on well-settled case law."



He was joined by Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy and Stephen G. Breyer.



The case is Arizona v. Gant.

[Marcus Bryant]

Well, good.


Stevens was joined by two of his most liberal colleagues -- Justices David H. Souter and Ruth Bader Ginsburg -- and two of his most conservative -- Justices Antonin Scalia and Clarence Thomas.

No Bush appointees. Well, of Bush fils. This majority is good to see, as one should see justices from both ends of the judicial spectrum joining together for such an opinion.

[DarrinS]

Is this a good thing?

[Marcus Bryant]

Is this a good thing?

Is personal liberty? Constitutional rights? The state is not the Constitution.

[Blake]

I'm thinking it's not a good thing.

[LnGrrrR]

Woohoo! Way to go Supreme Court.

I expect conservatives to decry this, even though this should be something they are in favor of. (Decreases the chance of government poking in where it shouldn't, increases personal liberty.)

Edit: Mainly because conservatives hate big government, unless it leads to a perceived or actual increase in the powers of "law and order", in which they're big fans of it.

[JoeChalupa]

I can live with it.

[Marcus Bryant]

Edit: Mainly because conservatives hate big government, unless it leads to a perceived or actual increase in the powers of "law and order", in which they're big fans of it.

True. Same for military action and expenditure. Though that train of thought did originate as a defense of those institutions. It's reflexive these days and unfortunately many on the right seem to have lost the natural skepticism one would expect them to demonstrate at the expansion of police power or the military.

[Blake]

I expect conservatives to decry this, even though this should be something they are in favor of. (Decreases the chance of government poking in where it shouldn't, increases personal liberty.)


I agree that government shouldn't be poking in where it shouldn't, but government pays for the roads that the public drives on.

I don't see the problem with a search of a vehicle on a public road.

Rodney Gant is a free man, though.

[Marcus Bryant]

So we lose our constitutional rights when there's a subsidy? (There's a bit of old truth there about why a small, limited government is preferable).

[FromWayDowntown]

I think it's a great decision. The liberty infringement of searches incident to arrest have always struck me as a bizarre exception to the warrant requirement. While they might provide a means to find additional evidence to support the basis for the arrest and the ultimate charge to be levied upon the defendant, they also allow an intrusive search that might reveal other crimes without the predicate of probable cause to support those searches.

An arrest -- and certainly an arrest without a conviction -- shouldn't completely eviscerate the liberties against warrantless searches that the Constitution ensures.

[DarrinS]

Say a cop pulls someone over and there's a strong smell of marijuana coming from the vehicle, the driver has a powdery residue on his nose, and the back seat is stacked with car stereo equipment. The cop has to wait for a judge to issue a warrant before searching the vehicle? Am I misinterpreting this?

[FromWayDowntown]

I agree that government shouldn't be poking in where it shouldn't, but government pays for the roads that the public drives on.

I don't see the problem with a search of a vehicle on a public road.

So any time you're driving down a public road, it would be acceptable for a police officer to stop you and search your vehicle?

[FromWayDowntown]

Say a cop pulls someone over and there's a strong smell of marijuana coming from the vehicle, the driver has a powdery residue on his nose, and the back seat is stacked with car stereo equipment. The cop has to wait for a judge to issue a warrant before searching the vehicle? Am I misinterpreting this?

Yes, you are.

In your hypothetical, there would be probable cause to search for drugs at least. That would have nothing to do with the arrest, though.

In Gant's situation, he was arrested for driving with a suspended license and there was, apparently, no probable cause to think he had committed any other crime. The Court's holding says that arrest alone doesn't furnish probable cause and that arrest alone is insufficient to permit a warrantless search.

[DarrinS]

Yes, you are.

In your hypothetical, there would be probable cause to search for drugs at least. That would have nothing to do with the arrest, though.

In Gant's situation, he was arrested for driving with a suspended license and there was, apparently, no probable cause to think he had committed any other crime. The Court's holding says that arrest alone doesn't furnish probable cause and that arrest alone is insufficient to permit a warrantless search.


Then I agree with the decision.

[LnGrrrR]

I agree that government shouldn't be poking in where it shouldn't, but government pays for the roads that the public drives on.

I don't see the problem with a search of a vehicle on a public road.

Rodney Gant is a free man, though.

Government pays for the streets that people walk on too. That doesn't mean that the government should have the right to search anyone on public property.

[LnGrrrR]

Then I agree with the decision.

Thanks for finally reading. :)

[Blake]

So we lose our constitutional rights when there's a subsidy? (There's a bit of old truth there about why a small, limited government is preferable).

what constitutional right are you losing if a cop searches your vehicle?

[Blake]

Government pays for the streets that people walk on too. That doesn't mean that the government should have the right to search anyone on public property.

I agree but I don't think cops searching people walking on sidewalks is an issue.

[Marcus Bryant]

what constitutional right are you losing if a cop searches your vehicle?

#4 (http://www.law.cornell.edu/constitution/constitution.billofrights.html)

[jack sommerset]

I was pulled over a few years back for not wearing a seat belt. They searched my car, took my picture with a polaroid and gave me a warning for the seat belt. I thought it was strange but the officer was polite and fast. Later I found out they were looking for a person driving the type of car I had for robbing a store and assaulting a women. I have no problem with them doing what they did.

[Marcus Bryant]

I was pulled over a few years back for not wearing a seat belt. They searched my car, took my picture with a polaroid and gave me a warning for the seat belt. I thought it was strange but the officer was polite and fast. Later I found out they were looking for a person driving the type of car I had for robbing a store and assaulting a women. I have no problem with them doing what they did.

Did you get a certificate for your free meal at Chili's then or did you have to wait for it to arrive in the mail?

[jack sommerset]

Did you get a certificate for your free meal at Chili's then or did you have to wait for it to arrive in the mail?

I got the satisfaction that my tax dollars were being spent well. Its not always the case with the police.

[FromWayDowntown]

I was pulled over a few years back for not wearing a seat belt. They searched my car, took my picture with a polaroid and gave me a warning for the seat belt. I thought it was strange but the officer was polite and fast. Later I found out they were looking for a person driving the type of car I had for robbing a store and assaulting a women. I have no problem with them doing what they did.

And, in that instance, they had at the very least, some cause to institute a search. I'd be curious if you consented to the search, too, or whether they just told you they were going to search your car. But in either event, your scenario is a far cry from saying that arresting someone provides a reasonable basis to search to see if they've done anything else wrong.

[Marcus Bryant]

At least they were efficient when they violated your constitutional right.

[Marcus Bryant]

So all the law enforcement officer had that an individual was seen driving the same type of car as the suspect? That seems rather flimsy, but I'll defer to the actual member of the bar in this thread.

[jack sommerset]

So all the law enforcement officer had that an individual was seen driving the same type of car as the suspect? That seems rather flimsy, but I'll defer to the actual member of the bar in this thread.

And the fact I was not wearing my seat belt

[FromWayDowntown]

So all the law enforcement officer had that an individual was seen driving the same type of car as the suspect? That seems rather flimsy, but I'll defer to the actual member of the bar in this thread.

Oh, I agree. Hence my question about whether the satisfied citizen had consented to the search.

But as bases for searches go, the stated basis for that search seems stronger to me than the "Well, we arrested you so now we get to rifle through your car to see if we can get you on anything else" basis.

[jack sommerset]

Now that I think about it, me and a buddy were pulled over one late night in San Antonio. He pulled us over,looked in the car and said something like " we our looking for someone else,have a good night" That whole encounter took 30 seconds. No big deal. Glad they are looking.

[jack sommerset]

Oh, I agree. Hence my question about whether the satisfied citizen had consented to the search.

But as bases for searches go, the stated basis for that search seems stronger to me than the "Well, we arrested you so now we get to rifle through your car to see if we can get you on anything else" basis.

sorry. i said no problem with the search and pic.

[jman3000]

aren't they still allowed to search the car if the officer has reasonable suspicion that there are weapons on board?

they find this shit anyway during the inventory of the car after it's impounded.

[FromWayDowntown]

sorry. i said no problem with the search and pic.

And that's a substantial difference.

Without your consent, I'd think that search was unconstitutional, too.

[jman3000]

Police found the drug in a search of his car after his arrest for driving with a suspended license. Gant had walked away from his car when he was arrested, and he sat handcuffed a distance away while police searched his vehicle.
.


I think that's what did it there. The car wasn't in his immediate control or possession. The officers had no reason to think that any evidence could have been destroyed nor any weapons retrieved from the vehicle.

[jack sommerset]

And that's a substantial difference.

Without your consent, I'd think that search was unconstitutional, too.

Honestly I don't know why anyone would say "no" especially knowing the police are video tapping the entire encounter. Officer Powell learned the hard way you can't just harass citizens.

[jman3000]

Consent to search is always tricky. I've been asked a couple times for permission to search my car, and I've always felt like I was being coerced into it. If I let them search my car, they let me off with a warning (I usually get pulled over for gay shit like a dim headlight or no light on the license plate) and they get the chance to perhaps find something incriminating on me.

I feel that if I say no to a search then I get nailed with a fine. So it's kinda lose lose.

[jack sommerset]

Consent to search is always tricky. I've been asked a couple times for permission to search my car, and I've always felt like I was being coerced into it. If I let them search my car, they let me off with a warning (I usually get pulled over for gay shit like a dim headlight or no light on the license plate) and they get the chance to perhaps find something incriminating on me.

I feel that if I say no to a search then I get nailed with a fine. So it's kinda lose lose.

I guess in my case its a win/win. I did not stand in the way of his investigation and I did not get a ticket.

[Marcus Bryant]

Now a ticket, that's what, 4 meals at Chili's, Outback, or Applebee's?

[jack sommerset]

Now a ticket, that's what, 4 meals at Chili's, Outback, or Applebee's?

What are u talking about?

[Marcus Bryant]

Freedom isn't free, 'tis true.

[jack sommerset]

I still don't know what you are talking about but if you think I let someone search my car and take my picture to get out of a ticket, you are dead wrong. Never even crossed my mind. Like I said, I thought it was strange. Later on I found out why the officer did this. No big deal.

[Blake]

#4 (http://www.law.cornell.edu/constitution/constitution.billofrights.html)

There are constant questions regarding the 4th amendment and what our rights really are. There are also constant questions as to what constitutes probable cause.

Random extra screenings with magnetometer wands occur quite regularly at the airport, on top of the initial luggage x-ray screenings.

I will of course defer to the Supreme Court's opinion on the matter, but I don't really see much of a difference between random car searches and random extra screenings at the airport.

[jman3000]

You gain absolutely nothing by letting an officer search your car. Unless of course you were in my situation and felt that you had no choice.

[jman3000]

There are constant questions regarding the 4th amendment and what our rights really are. There are also constant questions as to what constitutes probable cause.

Random extra screenings with magnetometer wands occur quite regularly at the airport, on top of the initial luggage x-ray screenings.

I will of course defer to the Supreme Court's opinion on the matter, but I don't really see much of a difference between random car searches and random extra screenings at the airport.

you have no expectation of privacy at an airport. It's a massive public building and obviously, due to safety reasons, some concessions on the 4th amendment must be made.

at the same time you have no expectation of privacy on the open road... but that applies to the plain view doctrine and dog searches. it's totally different in the obtrusivness of the searches. just like an 18 wheeler can be xrayed at a border checkpoint... it can't be torn apart inside out to look for something.

[jack sommerset]

There are constant questions regarding the 4th amendment and what our rights really are. There are also constant questions as to what constitutes probable cause.

Random extra screenings with magnetometer wands occur quite regularly at the airport, on top of the initial luggage x-ray screenings.

I will of course defer to the Supreme Court's opinion on the matter, but I don't really see much of a difference between random car searches and random extra screenings at the airport.

Thats a good point.

[MannyIsGod]

Awesome ruling. This should be a pretty big slap in the face to random drug busts for someone having a joint in the ashtray or the like.

[MannyIsGod]

you have no expectation of privacy at an airport. It's a massive public building and obviously, due to safety reasons, some concessions on the 4th amendment must be made.

at the same time you have no expectation of privacy on the open road... but that applies to the plain view doctrine and dog searches. it's totally different in the obtrusivness of the searches. just like an 18 wheeler can be xrayed at a border checkpoint... it can't be torn apart inside out to look for something.

Exactly

[Blake]

you have no expectation of privacy at an airport. It's a massive public building and obviously, due to safety reasons, some concessions on the 4th amendment must be made.

at the same time you have no expectation of privacy on the open road... but that applies to the plain view doctrine and dog searches. it's totally different in the obtrusivness of the searches. just like an 18 wheeler can be xrayed at a border checkpoint... it can't be torn apart inside out to look for something.

what's the difference of airport security checking your bag at the airport and a DPS officer checking your bag on the road?

[baseline bum]

what's the difference of airport security checking your bag at the airport and a DPS officer checking your bag on the road?

At the airport you can take your bag, turn around, and leave.

[Blake]

Exactly

I'm fairly certain the airport building itself is not the reason for airport security.

[Blake]

At the airport you can take your bag, turn around, and leave.

Nobody is forcing anyone to drive their car on a public street.

They can walk to the airport.

[Blake]

Awesome ruling. This should be a pretty big slap in the face to random drug busts for someone having a joint in the ashtray or the like.

actually.....and someone can correct me if I'm wrong......but a visible joint in the ashtray, or the smell of weed in the car, is easily probable cause for a warrantless search.

[Winehole23]

I think Manny meant post arrest, but you're surely correct.

[baseline bum]

Nobody is forcing anyone to drive their car on a public street.

They can walk to the airport.

Then you should be ok with the driver telling the cop to fuck off and pulling onto private property.

[ploto]

Consent to search is always tricky. I've been asked a couple times for permission to search my car, and I've always felt like I was being coerced into it. If I let them search my car, they let me off with a warning (I usually get pulled over for gay shit like a dim headlight or no light on the license plate) and they get the chance to perhaps find something incriminating on me.

I don't know you but your stories give me the distinct impression that officers are concluding something about you based upon your appearance or your car type, and with that I have a huge problem. Why do they need to search your car if the light is out by your license plate?


Nobody is forcing anyone to drive their car on a public street.

I have always wondered about private streets in gated subdivisions. I once had an SAPD motorcycle cop follow me down the road quite some distance and then follow me into my gated subdivision. He then followed me down a couple of streets and finally stopped to tell me that I should not be pulled over facing the wrong direction on the side of the road to get my mail. He never asked for a license or wrote me a ticket- I do not even know if he can. A friend with SAPD told me the cop was probably looking to meet women- seriously.

[Blake]

I think Manny meant post arrest, but you're surely correct.

he probably did.

Fock him any way. :lol

[Blake]

Then you should be ok with the driver telling the cop to fuck off and pulling onto private property.

not if you tell him to fock off on a public street before pulling onto private property.

[Blake]

I have always wondered about private streets in gated subdivisions. I once had an SAPD motorcycle cop follow me down the road quite some distance and then follow me into my gated subdivision. He then followed me down a couple of streets and finally stopped to tell me that I should not be pulled over facing the wrong direction on the side of the road to get my mail. He never asked for a license or wrote me a ticket- I do not even know if he can. A friend with SAPD told me the cop was probably looking to meet women- seriously.

No, he can't write you a ticket in a gated community that maintains their own streets. You can look at a planned unit development basically the same way as a giant ranch.

Unless you committed some offense on the public street, by following you in through the gate means he was technically trespassing.

[DarkReign]

There are constant questions regarding the 4th amendment and what our rights really are. There are also constant questions as to what constitutes probable cause.

I would hope most feel that the citizen's rights should supercede the needs/wants of the State.

Sadly, it seems your average American is so damn scared to leave their house, theyd rather the State have more power than intended in order to better protect them.

[FromWayDowntown]

No, he can't right you a ticket in a gated community that maintains their own streets. You can look at a planned unit development basically the same way as a giant ranch.

Unless you committed some offense on the public street, by following you in through the gate means he was technically trespassing.

That's not true at all. It might be that the officer is prohibited from writing a ticket for violating a law that applies only to that street -- a speed limit, for example -- but if the driver undertakes an act that is prohibited anywhere in the state -- something like reckless driving -- the officer damned sure can write a ticket for that act. Think about it this way: if there's a wreck in a gated community, who comes to investigate? The local police or sheriff. And when the agent of that investigatory body arrives, he's not prohibited from assessing blame or charging the blameworthy party or parties from violation of the law.

In the same way, an officer surely can arrest someone for crimes committed within a private home.

All of that ignores the point of the entire issue here. There is no doubt that a police officer, to conduct a search of a person's vehicle must have probable cause to support the search and the issuance of a warrant or he must have some basis to proceed under an exception to the warrant requirement. A person's mere presence on a public roadway does not create an exception to the warrant requirement and it doesn't create probable cause. That's true substantially because a person has an expectation of privacy -- though one that might be slightly diminished -- while in a motor vehicle. The Fourth Amendment is certainly intended (at least in part) to protect the privacy of individuals from baseless governmental infringement. The constitutional tradeoff is that if government can develop probable cause to believe that a particular crime is occurring (or has occurred) in a specific place, it can search private places. Without that probable cause, the individual right to privacy (not expressed in the 4th Amendment, but necessarily implied in the protection it affords) wins out - period.

[Blake]

That's not true at all. It might be that the officer is prohibited from writing a ticket for violating a law that applies only to that street -- a speed limit, for example -- but if the driver undertakes an act that is prohibited anywhere in the state -- something like reckless driving -- the officer damned sure can write a ticket for that act. Think about it this way: if there's a wreck in a gated community, who comes to investigate? The local police or sheriff. And when the agent of that investigatory body arrives, he's not prohibited from assessing blame or charging the blameworthy party or parties from violation of the law.

I assumed we were talking traffic violations.

A citation for reckless driving on private property is debatable.....depends on the situation, and really, the cop would have to be invited in by someone in the community to enforce such a violation.


In the same way, an officer surely can arrest someone for crimes committed within a private home.

I thought it was understood that a cop can come onto the property when invited in to investigate, say......murder?

I guess it wasn't.


All of that ignores the point of the entire issue here. There is no doubt that a police officer, to conduct a search of a person's vehicle must have probable cause to support the search and the issuance of a warrant or he must have some basis to proceed under an exception to the warrant requirement. A person's mere presence on a public roadway does not create an exception to the warrant requirement and it doesn't create probable cause. That's true substantially because a person has an expectation of privacy -- though one that might be slightly diminished -- while in a motor vehicle. The Fourth Amendment is certainly intended (at least in part) to protect the privacy of individuals from baseless governmental infringement. The constitutional tradeoff is that if government can develop probable cause to believe that a particular crime is occurring (or has occurred) in a specific place, it can search private places. Without that probable cause, the individual right to privacy (not expressed in the 4th Amendment, but necessarily implied in the protection it affords) wins out - period.

I don't disagree with any of that......especially the part about diminished privacy while operating a motor vehicle on a public street.

I just wonder about the inconsistency (in my opinion) between searching a person's bag in an airport and searching their bag on a public road.

[jack sommerset]

I draw the line at cavity searches.

[DarkReign]

I just wonder about the inconsistency (in my opinion) between searching a person's bag in an airport and searching their bag on a public road.

BB said it best. In an airport, you can turn around and walk out.

Not so much on a public road. You being a small part of the financing of that road, I might add.

[Blake]

BB said it best. In an airport, you can turn around and walk out.

Not so much on a public road. You being a small part of the financing of that road, I might add.

Have you ever driven to Hawaii? Me neither. I usually go to the airport that I was a small part of the financing of.

You can turn around and go home if you don't want to be in a car on a public road.

[DarkReign]

Have you ever driven to Hawaii? Me neither. I usually go to the airport that I was a small part of the financing of.

You can turn around and go home if you don't want to be in a car on a public road.

http://bp1.blogger.com/_m0ulqdPiC3k/RksxCRIPXLI/AAAAAAAAADI/WW9G0nh7qK4/s400/clever-girl!.jpg

[Wild Cobra]

Is this a good thing?


I'm thinking it's not a good thing.

Why? There is already cause for the arrest. Some police just have fun trashing peoples cars for no reason, yet it's done with acceptable practices, so they aren't held accountable.

What reasonable suspicion did the car give them to be violated? What did the car do?

Let the information gained be used for a request of a warrant, then searched in a controlled environment. The car is a place that contraband can be stashed, but so is public transportation, shops, etc. If the police follow a suspect, do they search all those places without a warrant?

What if it was your car that was loaned out or stolen. Would you want the upholstery ripped up for no good reason?

[Wild Cobra]

Say a cop pulls someone over and there's a strong smell of marijuana coming from the vehicle, the driver has a powdery residue on his nose, and the back seat is stacked with car stereo equipment. The cop has to wait for a judge to issue a warrant before searching the vehicle? Am I misinterpreting this?
What does it hurt to arrest the suspects, impound the vehicle, and verify any story about the good before issuing the warrant? What if they were in fact high, but moving? You didn't say anything like they were a dozen on the same Blu-Ray players in the boxes...

Even under that case. Isn't seeing the goods more a reason to arrest, without the need to search?

[Wild Cobra]

I was pulled over a few years back for not wearing a seat belt. They searched my car, took my picture with a polaroid and gave me a warning for the seat belt. I thought it was strange but the officer was polite and fast. Later I found out they were looking for a person driving the type of car I had for robbing a store and assaulting a women. I have no problem with them doing what they did.
So they see your car parked in your driveway, matching the description. I guess you'd be OK with them braking down your door?

[FromWayDowntown]

I don't disagree with any of that......especially the part about diminished privacy while operating a motor vehicle on a public street.

I just wonder about the inconsistency (in my opinion) between searching a person's bag in an airport and searching their bag on a public road.

(I had written a long response to this, but somehow in typing more managed to delete it -- I don't have time now to recreate all that I had written. What follows is a synopsis)

In reading a bit about this, airport screenings have been upheld because they amount to administrative searches that are supported by special needs in the same way that border checkpoints and sobriety checkpoints are viewed as constitutionally permissible while checkpoints aimed at ferreting out criminal activity, in general, are not permissible.

The distinction, I think, is that airport screenings arise from a very specific need -- the need to prevent criminal conduct on airplanes where law enforcement is sparse if available at all (and, thus, unable to deter crimes in progress) -- and is intended only to obtain a binary answer to whether a particular passenger is travelling with specific types of contraband or engaging in specific kinds of conduct. By contrast, a search out on a public roadway without pre-existing probable cause tends to arise from a more general interest -- an interest in determining whether the person is engaged in some type of criminal activity, without regard to the possession of any specific type of contraband or the undertaking of any specific kind of conduct.

While I can see that the answer might not be one that fully satisfies some skeptics, at the present time, that is the constitutional distinction that allows one and not the other. See United States v. Aukai, 497 F.3d 955 (9th Cir. 2007)(en banc)(holding that airport screening without warrant is constitutionally-permissible "because they are 'conducted as part of a general regulatory scheme in furtherance of an administrative purpose, namely, to prevent the carrying of weapons or explosives aboard aircraft, and thereby to prevent hijackings.'"); see also City of Indianapolis v. Edmond, 531 U.S. 32 (2000)("We have also upheld brief, suspicionless seizures of motorists at a fixed Border Patrol checkpoint designed to intercept illegal aliens, United States v. Martinez-Fuerte, 428 U. S. 543 (1976), and at a sobriety checkpoint aimed at removing drunk drivers from the road, Michigan Dept. of State Police v. Sitz, 496 U. S. 444 (1990). In addition, in Delaware v. Prouse, 440 U. S. 648, 663 (1979), we suggested that a similar type of roadblock with the purpose of verifying drivers' licenses and vehicle registrations would be permissible. In none of these cases, however, did we indicate approval of a checkpoint program whose primary purpose was to detect evidence of ordinary criminal wrongdoing.").

For what it's worth, Aukai is quite clear in saying that the constitutional basis for airport screenings has nothing to do with implied consent. The Court had to deal with that issue because the defendant had, in the midst of his screening, disavowed any intent to get on the airplane and argued that he no longer had consented to the search. The Ninth Circuit essentially held that once you get to the point of engaging a screener at all, the administrative search is constitutionally reasonable and may be continued even if you decide that you aren't going to fly.

[Mr. Peabody]

(I had written a long response to this, but somehow in typing more managed to delete it -- I don't have time now to recreate all that I had written. What follows is a synopsis)

In reading a bit about this, airport screenings have been upheld because they amount to administrative searches that are supported by special needs in the same way that border checkpoints and sobriety checkpoints are viewed as constitutionally permissible while checkpoints aimed at ferreting out criminal activity, in general, are not permissible.

The distinction, I think, is that airport screenings arise from a very specific need -- the need to prevent criminal conduct on airplanes where law enforcement is sparse if available at all (and, thus, unable to deter crimes in progress) -- and is intended only to obtain a binary answer to whether a particular passenger is travelling with specific types of contraband or engaging in specific kinds of conduct. By contrast, a search out on a public roadway without pre-existing probable cause tends to arise from a more general interest -- an interest in determining whether the person is engaged in some type of criminal activity, without regard to the possession of any specific type of contraband or the undertaking of any specific kind of conduct.

While I can see that the answer might not be one that fully satisfies some skeptics, at the present time, that is the constitutional distinction that allows one and not the other. See United States v. Aukai, 497 F.3d 955 (9th Cir. 2007)(en banc)(holding that airport screening without warrant is constitutionally-permissible "because they are 'conducted as part of a general regulatory scheme in furtherance of an administrative purpose, namely, to prevent the carrying of weapons or explosives aboard aircraft, and thereby to prevent hijackings.'"); see also City of Indianapolis v. Edmond, 531 U.S. 32 (2000)("We have also upheld brief, suspicionless seizures of motorists at a fixed Border Patrol checkpoint designed to intercept illegal aliens, United States v. Martinez-Fuerte, 428 U. S. 543 (1976), and at a sobriety checkpoint aimed at removing drunk drivers from the road, Michigan Dept. of State Police v. Sitz, 496 U. S. 444 (1990). In addition, in Delaware v. Prouse, 440 U. S. 648, 663 (1979), we suggested that a similar type of roadblock with the purpose of verifying drivers' licenses and vehicle registrations would be permissible. In none of these cases, however, did we indicate approval of a checkpoint program whose primary purpose was to detect evidence of ordinary criminal wrongdoing.").

For what it's worth, Aukai is quite clear in saying that the constitutional basis for airport screenings has nothing to do with implied consent. The Court had to deal with that issue because the defendant had, in the midst of his screening, disavowed any intent to get on the airplane and argued that he no longer had consented to the search. The Ninth Circuit essentially held that once you get to the point of engaging a screener at all, the administrative search is constitutionally reasonable and may be continued even if you decide that you aren't going to fly.

Damn, that's some legal scholarship. My next trial memo will have the following cite -

See Downtown, From Way, Supreme Court Limits Warrantless Car Searches, Spurstalk Forums, post #68, April 22, 2009.

[ElNono]

I was just going to say that there's a clear distinction codified in the law about airport/border check point searches vs other criminal searches. FWD beat me to it.
I like this decision, and I honestly think airport/border checks should follow next, in the sense of relaxing them a bit. In all honesty, I see them more of a 'make people feel secure' than actual security.

[MiamiHeat]

um, yes the government pays for the public roads

but who pays the government ? taxpayers.

so we are back to square one.

[jman3000]

I don't know you but your stories give me the distinct impression that officers are concluding something about you based upon your appearance or your car type, and with that I have a huge problem. Why do they need to search your car if the light is out by your license plate?


.


It's a mixture of driving late at night and officers being bored and looking for something to do.

One time I was droping a female friend off at her house and I didn't know the area very well so I was driving slowly. An officer pulled me over and said he was stopping me for a dim light on my plates. After we told him our stories, and he ran my information, he told us that the stop was just a (and I quote) "a chicken shit reason to pull you over. i really thought you were casing houses. Not really something I can prove, but there have been some robberies in the area and you never know. Y'all have a good night"

I've had my car searched 3 times. Once was after a stop for a broken headlight, one was for a stop for a broken tail light, and one was for taking a turn a little bit too fast.

The first two I put under a bored cop looking for a bust. The 3rd I put under them thinking I was under the influence.

[Oh, Gee!!]

Now that I think about it, me and a buddy were pulled over one late night in San Antonio. He pulled us over,looked in the car and said something like " we our looking for someone else,have a good night" That whole encounter took 30 seconds. No big deal. Glad they are looking.

or they're fucking with you cuz you're DWB.

[jman3000]

Where does this leave the Carroll doctrine?

[Mr. Peabody]

or they're fucking with you cuz you're DWB.

That can be a capital offense in some counties.

[jack sommerset]

So they see your car parked in your driveway, matching the description. I guess you'd be OK with them braking down your door?

How is that the same?

[FaithInOne]

The government doesn't pay for shit.



And Cavity searches should be unconstitutional. If you are going to go through that much trouble, god bless you.

[sabar]

I'm very surprised that people would for some reason gladly surrender their rights to the state. It makes no sense. Do you gladly submit to all higher authority, or just the government?

[Winehole23]

Shocking, to me. Not only is security replacing liberty as an object of civil reverence, liberty itself gets offered up as a willing tribute to it. Creepy.

[MannyIsGod]

Shocking, to me. Not only is security replacing liberty as an object of civil reverence, liberty itself gets offered up as a willing tribute to it. Creepy.

There is a clear result of the Bush presidency. It is undeniable many people are now more comfortable with a more authoritative presence of the government.

[LnGrrrR]

what constitutional right are you losing if a cop searches your vehicle?

The right to be free from unreasonable search and seizure. If the cop can not REASONABLY deduce you have drugs in your car, or a weapon, or something like that, then he shouldn't have that right. It's simple.

If you get stopped for jaywalking, should a cop be able to search your person?

[RandomGuy]

I agree that government shouldn't be poking in where it shouldn't, but government pays for the roads that the public drives on.

I don't see the problem with a search of a vehicle on a public road.

Rodney Gant is a free man, though.

The government doesn't pay for the vehicle however. That is my property.

Does that mean the government can, say, rifle through my pockets while I am walking down the sidewalk, if they paid for the sidewalk?

[RandomGuy]

what constitutional right are you losing if a cop searches your vehicle?

Amendment 4 - Search and Seizure. Ratified 12/15/1791.

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://www.usconstitution.net/const.html#Am4

[LnGrrrR]

what's the difference of airport security checking your bag at the airport and a DPS officer checking your bag on the road?

Is an airport considered 'public property' in the same sense that a highway would?

Also, I wouldn't be surprised if there was some 'implied consent to be searched' at an airport as well, held up by some court ruling. I think that's BS as well... airport security is a joke.

Edit: I see FromWay already posted it. Nice to know my guesses were correct. :)

[jack sommerset]

The real problem is the pigs are trained piss poor and to many Officer Powells are roaming our streets in squad cars. Some take advantage of their positions. Like I said before I have no problem if I am stopped in a car for them to search my ride. If I feel they did not have a reasonable cause for pulling me over in the first place or acted inappropriately I will file a complaint. Good news is most cop cars have video that record the entire instance.

[jack sommerset]

Jimmy Smith (former NFL player) was pulled over because of over tinted windows. Just a traffic stop. Routine search finds crack in his car. Nice job. Another crackhead gets busted. Get that shit off the street!

[Marcus Bryant]

I'm very surprised that people would for some reason gladly surrender their rights to the state. It makes no sense. Do you gladly submit to all higher authority, or just the government?

This is no longer the land of Jefferson. Love of country has been bastardized into love of the state. Many don't distinguish between the two. Not to mention there's no understanding of our form of government and from whom and through what agreement it obtains its consent to govern. Loss of liberty is justified by provision of "security" (Franklin spoke about that once).

It's interesting when our history is whitewashed in order to propagate the lie that this nation was founded as some kind of authoritarian nanny-state. Both major political parties engage in such revisionism. The Constitution is deemed a relic by politicians on the left and right (there's a good quote of GWB regarding this).

All institutions in our society seem geared towards keeping the people under control. Our schools turn out good little drones ready for corporate life. Our laws will be interpreted so as to protect your liberty so long as its the liberty that any red-blooded, God-fearing man (or his woman) accepts. The police will protect your liberty by stopping you at their whim and asking for your papers. The media is content to agitate the masses with the latest 48 media cycle hubub of the moment. All of this seems designed to force you, yes you, to serve the state (and its real benefactors). Nevermind that the contract you thought you were a party to which was ultimately designed to protect your right to life, liberty, and the pursuit of happiness (yours, not that of some egoist running for public office) says otherwise.

We are a nation built on the premise of a free people, who are no longer free, but subservient chattle of the great red, white, & blue Leviathan of Washington DC (and its sponsors).

Perhaps Uncle Sam can start selling off naming rights to various national landmarks. Or cabinet level departments. Fuck it, it's time for a drink.

[Marcus Bryant]

Jimmy Smith (former NFL player) was pulled over because of over tinted windows. Just a traffic stop. Routine search finds crack in his car. Nice job. Another crackhead gets busted. Get that shit off the street!

Why stop there? We should have random, surprise searches of all homes to find the crack and eliminate it from our society.

[Marcus Bryant]

Who knows? Maybe those searches would turn up a random Muslim or two.

[Wild Cobra]

um, yes the government pays for the public roads

but who pays the government ? taxpayers.

so we are back to square one.
Within Article 1; Section 8:

To establish post offices and post roads;
Technically, the government is suppose to build the roads. I would agree that to extend that means to maintain them as well. At least routs that the Postal Service uses.

Maybe we should increase the price of postage instead if increasing the gas tax?

[Wild Cobra]

How is that the same?
If you're OK with them searching your car simply because it has the right description, then wouldn't it stand to reason that what they were looking for, you took inside the house?

Where do we cross that big grey line between reasonable and unreasonable?

[Wild Cobra]

Why stop there? We should have random, surprise searches of all homes to find the crack and eliminate it from our society.
No kidding. Let's not open such cans of worms. When does it stop?

[FromWayDowntown]

No kidding. Let's not open such cans of worms. When does it stop?

One could say the same of things like warrantless wiretapping.

:stirpot:

[jack sommerset]

If you're OK with them searching your car simply because it has the right description, then wouldn't it stand to reason that what they were looking for, you took inside the house?

Where do we cross that big grey line between reasonable and unreasonable?

You assume because I did not wear my seat belt I am ok with them searching my house.:lol I would not.

I would be OK if someone described my house in a crime to come search it. If a girl says she was raped there or kid molested. They can come right in and search away. No problem

[Wild Cobra]

One could say the same of things like warrantless wiretapping.

:stirpot:
Except that it is reasonable under the conditions they do it!

[Wild Cobra]

You assume because I did not wear my seat belt I am ok with them searching my house.:lol I would not.

then why are you OK with searching your car? What probable cause do they have?

[FromWayDowntown]

Except that it is reasonable under the conditions they do it!

Oh yes, the old "Wild Cobra Reasonableness Test" carries the Constitutional day, yet again!

[jack sommerset]

then why are you OK with searching your car? What probable cause do they have?

Police officer was looking for a suspect and it happened I drove a car with the description. Thats why.

If a cop says I want to search ur house because u were not wearing ur seat belt, makes no sense to me so I would say no. Common Sense people. Common sense.

Why lose sleep over a cop taking a few minutes out of ur day to search ur trunk? People are worried about getting fucked over is why. I am not. Search away.

FYI. Protect urself. I have recording devices located in my ride and home. They did not cost much and it makes me feel better.

[Wild Cobra]

Police officer was looking for a suspect and it happened I drove a car with the description. Thats why.

Exactly. Now that you are inside the house, and he's looking for a suspect, why not search your house?


If a cop says I want to search ur house because u were not wearing ur seat belt, makes no sense to me so I would say no. Common Sense people. Common sense.

Does it make sense to search your car because you're not wearing your seat belt?

It doesn't to me. What am I missing?


Why lose sleep over a cop taking a few minutes out of ur day to search ur trunk? People are worried about getting fucked over is why. I am not. Search away.

Principle.

What probable cause did he have that shouldn't extent into your house?

[RandomGuy]

Who knows? Maybe those searches would turn up a random Muslim or two.

What?

I thought I heard my name...

[RandomGuy]

Oh yes, the old "Wild Cobra Reasonableness Test" carries the Constitutional day, yet again!

If Wild Cobra sees fit, you must acquit.

[Oh, Gee!!]

Police officer was looking for a suspect and it happened I drove a car with the description. Thats why.

ever wonder if the cop was lying? maybe he just wanted to fuck with cuz you're black, and gave you some bullshit about "matching description" as cover.

[DarkReign]

ever wonder if the cop was lying? maybe he just wanted to fuck with cuz you're black, and gave you some bullshit about "matching description" as cover.

He's white. Therefore, that never happens to anyone, ever.

[Blake]

(
The distinction, I think, is that airport screenings arise from a very specific need -- the need to prevent criminal conduct on airplanes where law enforcement is sparse if available at all (and, thus, unable to deter crimes in progress) -- and is intended only to obtain a binary answer to whether a particular passenger is travelling with specific types of contraband or engaging in specific kinds of conduct. By contrast, a search out on a public roadway without pre-existing probable cause tends to arise from a more general interest -- an interest in determining whether the person is engaged in some type of criminal activity, without regard to the possession of any specific type of contraband or the undertaking of any specific kind of conduct.

While I can see that the answer might not be one that fully satisfies some skeptics, at the present time, that is the constitutional distinction that allows one and not the other.

the need to sidestep 4th amendment rights in an airport pretty clearly came from 9/11.

Not sure why most of you are ok with that but throw a hissy fit about a DPS officer possibly looking in your bag.

[Blake]

The right to be free from unreasonable search and seizure. If the cop can not REASONABLY deduce you have drugs in your car, or a weapon, or something like that, then he shouldn't have that right. It's simple.

without probable cause, he doesn't have that right.


If you get stopped for jaywalking, should a cop be able to search your person?

nope. but when boarding a plane they can randomly search your person.

[Blake]

The government doesn't pay for the vehicle however. That is my property.

did the government pay for your airplane ticket?


Does that mean the government can, say, rifle through my pockets while I am walking down the sidewalk, if they paid for the sidewalk?

probable cause

[Blake]

Amendment 4 - Search and Seizure. Ratified 12/15/1791.

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://www.usconstitution.net/const.html#Am4

which goes back to my airport question.

you didn't really read the rest of the thread, did you....

[Blake]

Is an airport considered 'public property' in the same sense that a highway would?

imo, I think an airport would be considered less 'public property' than a highway would.


Also, I wouldn't be surprised if there was some 'implied consent to be searched' at an airport as well, held up by some court ruling. I think that's BS as well... airport security is a joke.

Edit: I see FromWay already posted it. Nice to know my guesses were correct. :)

I agree that it's BS as well.

[Blake]

Except that it is reasonable under the conditions they do it!

how is warrantless wiretapping reasonable, but car searches are not?

[Blake]

Why stop there? We should have random, surprise searches of all homes to find the crack and eliminate it from our society.

because private property is not public property

[Blake]

Within Article 1; Section 8:

Technically, the government is suppose to build the roads. I would agree that to extend that means to maintain them as well. At least routs that the Postal Service uses.

Maybe we should increase the price of postage instead if increasing the gas tax?

huh?

[Blake]

No kidding. Let's not open such cans of worms. When does it stop?

with you, apparently at reasonable warrantless wiretaps

[Wild Cobra]

how is warrantless wiretapping reasonable, but car searches are not?
I have addressed this, maybe no complete enough.

First of all, a warrant is an order to take action. Not permission. Probable cause is the only requirement for an officer to act without a warrant. Laws have been enacted to try to keep law enforcement from overstepping their bounds. When it comes to orders coming from the executor of law, i.e, the president... he does not fall under the same laws. He only falls under the constitution. The only test then is if it is reasonable or not.

Please explain to me why you think a warrant is required? Look at how the punctuation breaks up the 4th amendment. It is reasonable to trace associations and conversations with known terrorists. It is not reasonable to search someones vehicle because of a seatbelt law.

[Winehole23]

Therefore Barack Obama -- who is a socialist tyrant -- ought to be allowed to spy on Americans without any probable cause and to torture people at his discretion.

[LnGrrrR]

Except that it is reasonable under the conditions they do it!

Right.. how many NSL requests got denied? Oh wait, none of them? :p

[ElNono]

First of all, a warrant is an order to take action. Not permission. Probable cause is the only requirement for an officer to act without a warrant. Laws have been enacted to try to keep law enforcement from overstepping their bounds. When it comes to orders coming from the executor of law, i.e, the president... he does not fall under the same laws. He only falls under the constitution. The only test then is if it is reasonable or not.


That is not correct at all. The FISA law was enacted *specifically* to oversee any and all surveillance, including those coming from the executive. As a matter of fact, the reason the FISA law was created to begin with had to do with Nixon ordering spying on certain members of the media and population. The law was supposed to prevent this from ever happening again, as it had exclusive rights for allowing domestic wiretaps. That is actually why the NSA wiretaps were entirely illegal.

[Wild Cobra]

That is not correct at all. The FISA law was enacted *specifically* to oversee any and all surveillance, including those coming from the executive. As a matter of fact, the reason the FISA law was created to begin with had to do with Nixon ordering spying on certain members of the media and population. The law was supposed to prevent this from ever happening again, as it had exclusive rights for allowing domestic wiretaps. That is actually why the NSA wiretaps were entirely illegal.

Utter bullshit.

Law cannot supersede the constitution. The president is bound to protect this nation and the understood executive powers are not spelled out, but from common law. As long as the president does not violate the constitution, he can direct and delegate actions that others cannot.

[ElNono]

Utter bullshit.

Law cannot supersede the constitution. The president is bound to protect this nation and the understood executive powers are not spelled out, but from common law. As long as the president does not violate the constitution, he can direct and delegate actions that others cannot.

Except there's no such wording in the US Constitution that allows the executive to break the law. There would be no need for all these silly lawyer memos otherwise. Furthermore, the limits on execute power over national security are so damn clear, that the executive alone can't even start a war.
As much as you like to believe that the executive is above the Constitution, that is not the case AT ALL.

[FromWayDowntown]

The Constitution is largely meaningless if Article II powers can be wielded in spite of Article I acts.

Cobra, could Congress just defy an Act of the President? If the President is (as you say) constitutionally unencumbered by the acts of Congress (or presumably, the Supreme Court), then what checks and balances could really exist in our government.

John Yoo should be giving you a call to find support to further expand Presidential power.

It's absolutely utterly absurd to argue that the President is, in essence, bound by no law other than the Constitution.

[FromWayDowntown]

And Blake:

I don't think that the permisisbility of airport searches is purely a post-9/11 creation. People flying on planes have been subject to at least some degree of examination at airports for as long as I've been flying, which is now about 30 years. And I think that baseline examination can still be constitutionally justified through the administrative search doctrine. Certainly, the initial scrutiny has grown -- at least to some extent -- but I think the extent of the search still comports with the administrative means it seeks to achieve. And, from a practical standpoint, I suppose those who fly are less willing to complain about the intrusion of that warrantless search because it offers some assurance of safety and seems less harassing than a warrantless vehicle search on the side of a highway.

The Courts that have dealt with airport searches -- including the 9th Circuit most recently -- have concluded that implied consent IS NOT a basis for upholding the search. Thus, it doesn't matter that the airport is publicly-owned or that people volunteer to fly. What matters, apparently, is that there is a specific administrative goal to be achieved by the search -- as I said before, a binary answer about contraband and misconduct.

Certainly, though, we're dealing with a judicially-created justification for avoiding the warrant requirement in that circumstance, and it's understandable that some might find the rationale somewhat flimsy and the distinctions a bit too forced.

[Blake]

Except there's no such wording in the US Constitution that allows the executive to break the law. There would be no need for all these silly lawyer memos otherwise. Furthermore, the limits on execute power over national security are so damn clear, that the executive alone can't even start a war.
As much as you like to believe that the executive is above the Constitution, that is not the case AT ALL.

FYI - recent ruling by a "secret" federal appeals court......



Court Affirms Wiretapping Without Warrants

By JAMES RISEN and ERIC LICHTBLAU

Published: January 15, 2009

WASHINGTON — In a rare public ruling, a secret federal appeals court has said telecommunications companies must cooperate with the government to intercept international phone calls and e-mail of American citizens suspected of being spies or terrorists.

The ruling came in a case involving an unidentified company’s challenge to 2007 legislation that expanded the president’s legal power to conduct wiretapping without warrants for intelligence purposes.

But the ruling, handed down in August 2008 by the Foreign Intelligence Surveillance Court of Review and made public Thursday, did not directly address whether President Bush was within his constitutional powers in ordering domestic wiretapping without warrants, without first getting Congressional approval, after the terrorist attacks of 2001..............

http://www.nytimes.com/2009/01/16/washington/16fisa.html?_r=1&fta=y


I guess that settles that. Warrantless wiretaps are apparently ok in the name of national security.

[ElNono]

I don't think that the permisisbility of airport searches is purely a post-9/11 creation.

It isn't. Look for United States v. Medina-Mojica. That was back in 1999.

[jack sommerset]

I really just don't get the big deal in searching a car if you get pulled over for a traffic violation. The only problem I see are the cops who are doing it. Are they doing it to harass you or are they doing because they have a reason, such as smell weed, see a knife,driver acting like a nut. There are actually some good cops out there. I know there are some bad ones and to me this is why people have a problem with this. Remember if you are not breaking the law u have nothing to worry about. Just be cool,answer the questions and move on. If you think u were being picked on file a complaint. Not a big deal.

[Blake]

And Blake:

I don't think that the permisisbility of airport searches is purely a post-9/11 creation. People flying on planes have been subject to at least some degree of examination at airports for as long as I've been flying, which is now about 30 years.

no doubt. The x-ray on the luggage has been around seemingly almost forever...

but pulling people aside at random times and doing more intensive searches on their person has not been. I very clearly remember the difference in airport security from summer of 2001 compared to summer 2002.


And I think that baseline examination can still be constitutionally justified through the administrative search doctrine. Certainly, the initial scrutiny has grown -- at least to some extent -- but I think the extent of the search still comports with the administrative means it seeks to achieve. And, from a practical standpoint, I suppose those who fly are less willing to complain about the intrusion of that warrantless search because it offers some assurance of safety and seems less harassing than a warrantless vehicle search on the side of a highway.

The Courts that have dealt with airport searches -- including the 9th Circuit most recently -- have concluded that implied consent IS NOT a basis for upholding the search. Thus, it doesn't matter that the airport is publicly-owned or that people volunteer to fly. What matters, apparently, is that there is a specific administrative goal to be achieved by the search -- as I said before, a binary answer about contraband and misconduct.

Certainly, though, we're dealing with a judicially-created justification for avoiding the warrant requirement in that circumstance, and it's understandable that some might find the rationale somewhat flimsy and the distinctions a bit too forced.

eh. I still think it's inconsisent when talking about 4th amendment rights...
...but again, I will defer to the courts rulings in the hopes that they are smarter than me. :lol

[Blake]

I really just don't get the big deal in searching a car if you get pulled over for a traffic violation. The only problem I see are the cops who are doing it. Are they doing it to harass you or are they doing because they have a reason, such as smell weed, see a knife,driver acting like a nut. There are actually some good cops out there. I know there are some bad ones and to me this is why people have a problem with this. Remember if you are not breaking the law u have nothing to worry about. Just be cool,answer the questions and move on. If you think u were being picked on file a complaint. Not a big deal.

I don't get the deal either, as in "if you aren't doing anything wrong, then what are you worried about?"....

but if the courts think that it's a violation of 4th amendment rights, then there's pretty much nothing else to say.

[ElNono]

FYI - recent ruling by a "secret" federal appeals court......

I guess that settles that. Warrantless wiretaps are apparently ok in the name of national security.

That "secret" federals appeals court *IS* FISA. And warrantless wiretaps were already allowed, but only THROUGH FISA. What that company challenged was FISA's authority. The NSA wiretaps, on the other hand, were done outside of FISA, thus completely illegal.

[Blake]

The NSA wiretaps, on the other hand, were done outside of FISA, thus completely illegal.

I'm thinking there will never be a judge out there that will convict Bush of illegal wiretapping.

[ElNono]

I'm thinking there will never be a judge out there that will convict Bush of illegal wiretapping.

That doesn't make it any more legal, now, does it?

Plus I don't think anybody is looking to convict the ex-president. The idea here is that telecoms were fully aware that the wiretaps were illegal, but still went with them.
Thus they should be liable. Unfortunately, with Congress passing retroactive immunity, that's another avenue that was closed to obtain relief from the abuse.

In other words, another case of abuse of power that goes unpunished. But the worst part is the partisan cronies like WC that had sudden memory loss on the abuses of the previous administration (And BTW, I'm not absolving the Dems from this either. Obama happily voted for the immunity bill)

[Blake]

That doesn't make it any more legal, now, does it?


if nobody is prosceuted, convicted, or even held liable then that really doesn't mean it was illegal either now, does it?

[ElNono]

if nobody is prosceuted, convicted, or even held liable then that really doesn't mean it was illegal either now, does it?

It doesn't work like that. The telecoms did get sued, and there was enough evidence to go ahead with a trial. The retroactive immunity simply prevented the cases to move forward.
That actually is still being challenged.
There's no question that the NSA wiretaps happened, and that they were done outside of FISA. Heck, even the president at the time confirmed it.

[LnGrrrR]

Utter bullshit.

Law cannot supersede the constitution. The president is bound to protect this nation and the understood executive powers are not spelled out, but from common law. As long as the president does not violate the constitution, he can direct and delegate actions that others cannot.

Wtf are you smoking? So is the President the only public citizen above the law? Do some senior tenured Senators get the same privilege?

Can the President just haul off and go kill someone on the street for pissing him off? I mean, it's not directly mentioned in the Constitution that the President can't kill someone, right? Therefore it's ok?

[LnGrrrR]

I really just don't get the big deal in searching a car if you get pulled over for a traffic violation. The only problem I see are the cops who are doing it. Are they doing it to harass you or are they doing because they have a reason, such as smell weed, see a knife,driver acting like a nut. There are actually some good cops out there. I know there are some bad ones and to me this is why people have a problem with this. Remember if you are not breaking the law u have nothing to worry about. Just be cool,answer the questions and move on. If you think u were being picked on file a complaint. Not a big deal.

So what's the big deal about a small raise in taxes? I mean, it's just going to be a few extra dollars per year, right?

[Oh, Gee!!]

So what's the big deal about a small raise in taxes?

it's obviously explicitly unconstitutional to raise taxes slightly.

[Wild Cobra]

Wtf are you smoking? So is the President the only public citizen above the law? Do some senior tenured Senators get the same privilege?

Hell no. As a citizen, he must obey the laws.

As president, the constitution cannot be overruled by law in the performance of his duties.


Can the President just haul off and go kill someone on the street for pissing him off? I mean, it's not directly mentioned in the Constitution that the President can't kill someone, right? Therefore it's ok?

Why are you being absurd?

[jack sommerset]

So what's the big deal about a small raise in taxes? I mean, it's just going to be a few extra dollars per year, right?

That would be fine but after 36 percent you have to start drawing the line...right? In fact I think after everything is said and I done I pay about 45-50 percent in taxes.

[ElNono]

As president, the constitution cannot be overruled by law in the performance of his duties.

Anybody else thinks this sentence makes no sense whatsoever?

I mean, I think I know what he's trying to say, however wrong he is.
One of the president's constitutional mandates is to obey the law. If he deems a law is unconstitutional, he can challenge it in court, or present an alternative law to Congress that overrides the previous one. Under NO circumstances the president can break the law.

[LnGrrrR]

Hell no. As a citizen, he must obey the laws.

As president, the constitution cannot be overruled by law in the performance of his duties.

Why are you being absurd?

Me being absurd?

WTF does the sentence "As President, the constitution cannot be overruled by law in the performance of his duties." mean? Tell me, what do you think the Constitution allows the President to do? I'm pretty sure it says that he must "take care that the LAWS must be faithfully executed", not "must protect the country at all costs, even if it means breaking the law."

What do YOU think are his "Constitutional" duties?

[LnGrrrR]

That would be fine but after 36 percent you have to start drawing the line...right? In fact I think after everything is said and I done I pay about 45-50 percent in taxes.

And some people draw the line at searches with no probable cause. See my point yet?

[Blake]

It doesn't work like that. The telecoms did get sued, and there was enough evidence to go ahead with a trial. The retroactive immunity simply prevented the cases to move forward.
That actually is still being challenged.
There's no question that the NSA wiretaps happened, and that they were done outside of FISA. Heck, even the president at the time confirmed it.

:lol then how does it work? ElNono on a spurs message board says it is illegal, therefore it is?

Bush will always throw out that he was acting under article II war powers and there won't be any court out there that will find him guilty.

[ElNono]

:lol then how does it work? ElNono on a spurs message board says it is illegal, therefore it is?


No, you let the justice branch of the government investigate and find out what happened. You don't just throw a blanket immunity and tie it's hands.


Bush will always throw out that he was acting under article II war powers and there won't be any court out there that will find him guilty.

If that's the case, then why not let a court go ahead and do it? Let's have the Supreme Court hear the case for executive powers as Cheney believe they worked, and the legality of the NSA wiretaps... I mean, that's transparency right there, right? If they were right all along, they don't need any immunity... What were they afraid of? Some 'activist judge' in the Supreme Court? GAFB

[jack sommerset]

And some people draw the line at searches with no probable cause. See my point yet?

Some people thinks its ok to fuck kids. There is a line. 18 in most states. So no I donot see ur point.

[Winehole23]

:lol then how does it work? ElNono on a spurs message board says it is illegal, therefore it is?

Bush will always throw out that he was acting under article II war powers and there won't be any court out there that will find him guilty.None has so far.

Your discussion with El Nono in this thread is a great demo of the de facto/de jure distinction IMO.

As a matter of law (de jure), no one is above the law and all are equal before it. US Presidents swear to defend, uphold and execute it faithfully. You might say this is the formulaic view. It is a commonplace so long as the law is.

I tend to agree with your gloss on the significance of extra-constitutional activities *in reality (http://www.google.com/search?hl=en&client=firefox-a&rls=org.mozilla:en-US:official&hs=3aK&defl=en&q=define:de+facto&ei=6oX2SeKIFsPgtgef3rmoDw&sa=X&oi=glossary_definition&ct=title)*. Bush flauted the US Constitution and his oath to take care to execute the laws faithfully when he surveilled Americans surreptitiously (http://www.merriam-webster.com/dictionary/surreptitious) and without particularized cause.

The fact that the authority to which GWB appeals has not so far been challenged successfully; and further that the other participants in (de jure) crime have been immunized by the US Congress; and yet further that if his successor has not upheld the same privileges, he has not exactly disavowed them either -- all tend to the result that GWB's *feloniously*acquired surveillance privileges will become the custom and attach normally to the office.

In other words, (de jure) *crime* sometimes becomes de facto legal precedent, instead of perps being prosecuted, amerced and jailed.

Finally, I should say one thing about El Nono's side of it. In the de facto case outlined, we are allowing the legal equivalent of a Star Chamber. Regal fucking discretion. It means the end of rule of law, or at least of equality before it, which is something very similar.

Why so-called conservatives on this board want this power reposed in Barack Obama is beyond me. Maybe Americans think of the President as being a sort of king now. That he deserves the discretion somehow. None seem to care that, God forbid, someday we should elect a venal or conniving man to serve.

(The callow bona fides that has accompanied the novel powers and secrecy claimed by the executive branch, does not accord with the conservative view of human nature, but more chimes with the liberal one IMO. We have a government of men and not angels, but now we have given it the Ring of Gyges (http://plato-dialogues.org/tetra_4/republic/gyges.htm).)

As our connection with republican form attenuates, so does the authority of law. The adoration of raw power usurps civil pieties and also the society those pieties once protected, and the whole world once admired.

[ElNono]

...

Finally, I should say one thing about El Nono's side of it. In the de facto case outlined, we are allowing the legal equivalent of a Star Chamber. Regal fucking discretion. It means the end of rule of law, or at least of equality before it, which is something very similar.

...



That's exactly my point. Not only the state allows the law to be broken, it protects those that committed the crime.

So where does it end? If you break the law and abuse the system and don't get punished for it, then what's the incentive to stop doing it?
Do we really as citizens have to get used to the idea that select peers are above the law? Even if it happens in our current world, I refuse to condone it, and I think it's something that should be criticized.

[Wild Cobra]

Anybody else thinks this sentence makes no sense whatsoever?

I mean, I think I know what he's trying to say, however wrong he is.
One of the president's constitutional mandates is to obey the law. If he deems a law is unconstitutional, he can challenge it in court, or present an alternative law to Congress that overrides the previous one. Under NO circumstances the president can break the law.
When the law is in conflict with the presidents mandate to protect this nation, he sure the hell can. Does the phrase "executor of law" mean anything to you?

Article II; Section 1:


The executive Power shall be vested in a President of the United States of America.

"I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."
Section 3:

he shall take Care that the Laws be faithfully executed,
It does not say he will take care to follow the law, but that he faithfully executes the law. He is the executor of law. He has the power of decision over many laws, and the application of those that affect his presidential powers. You have to apply the known usages of words like ‘faithfully’ from the 18th century meaning, and apply it to the presidents mandate


Faithfully:

In a faithful manner; loyally; sincerely; honestly; trustfully.
I don't see anywhere that it states in a precise manner, as the the black and white of the text. Can you say he has not made these controversial decisions in a manner that was sincere and honest? Loyal to the needs of defending the constitution? Do you know his heart? I don't apply trust, because so many people will never trust him. That's you guy's problem.

[Wild Cobra]

That's exactly my point. Not only the state allows the law to be broken, it protects those that committed the crime.

So where does it end? If you break the law and abuse the system and don't get punished for it, then what's the incentive to stop doing it?
Do we really as citizens have to get used to the idea that select peers are above the law? Even if it happens in our current world, I refuse to condone it, and I think it's something that should be criticized.
You guys are completely twisting my point of executor of law, and the granted powers. A star chamber situation would never be constitutional. Funny how many of the same people not understanding the president as the executor of laws are the same ones wanting to promote illegal immigrations.

[ElNono]

You guys are completely twisting my point of executor of law, and the granted powers. A star chamber situation would never be constitutional. Funny how many of the same people not understanding the president as the executor of laws are the same ones wanting to promote illegal immigrations.

LOL at twisting words... The Constitution is very clear on what powers the president has. Section 2, that you bravely omitted from your revisionist Constitutional review.

Furthermore, if he's above the law, and/or dictates how to apply the laws, then there should be no need for Section 4, or a Judicial branch at all.

Your entire post is such a fallacy. I don't even know who you're trying to convince other than yourself.

[LnGrrrR]

Some people thinks its ok to fuck kids. There is a line. 18 in most states. So no I donot see ur point.

The line YOU draw is arbitrary. So is the line I draw. Therefore, the line is determined by society at large, and all of these opinions go into what is written up as law.

Our LAW says that we should be free from unreasonable search and seizure, or search without probable cause. Just because YOU are willing to let them search your car does not mean that WE should be willing to. Just because I am willing to pay higher taxes does not mean that YOU should be willing to.

[LnGrrrR]

When the law is in conflict with the presidents mandate to protect this nation, he sure the hell can. Does the phrase "executor of law" mean anything to you?

Article II; Section 1:



Section 3:

It does not say he will take care to follow the law, but that he faithfully executes the law. He is the executor of law. He has the power of decision over many laws, and the application of those that affect his presidential powers. You have to apply the known usages of words like ‘faithfully’ from the 18th century meaning, and apply it to the presidents mandate


I don't see anywhere that it states in a precise manner, as the the black and white of the text. Can you say he has not made these controversial decisions in a manner that was sincere and honest? Loyal to the needs of defending the constitution? Do you know his heart? I don't apply trust, because so many people will never trust him. That's you guy's problem.

The LAW applies to everyone WC. Executing the law means executing it FOR EVERYONE. Not, "execute the law but you don't have to worry about it yourself."

[LnGrrrR]

Also, how fucked up is it that WC thinks that, unless the Constitution specifically said, "The President has to follow the law", that he doesn't? I mean, honestly, isn't that laughable?

[ElNono]

Also, how fucked up is it that WC thinks that, unless the Constitution specifically said, "The President has to follow the law", that he doesn't? I mean, honestly, isn't that laughable?

It's actually pretty sad if you ask me...

[Wild Cobra]

LOL at twisting words... The Constitution is very clear on what powers the president has. Section 2, that you bravely omitted from your revisionist Constitutional review.

Section 2 of article 2 has nothing to do with what we are discussing. We are off topic anyway. This thread is about searching people. Not protecting the nations security.


Furthermore, if he's above the law, and/or dictates how to apply the laws, then there should be no need for Section 4, or a Judicial branch at all.

Do you mean Article III of the constitution? Section 4 covers impeachment of crimes. That's a very liberal stretch to say exercising executive power is a crime.


Your entire post is such a fallacy. I don't even know who you're trying to convince other than yourself.


This from someone who doesn't know the constitution?

Article II, Section 1: President and Vice President

* 1.1 Clause 1: Executive power
* 1.2 Clause 2: Method of choosing electors
* 1.3 Clause 3: Electors
* 1.4 Clause 4: Election day
* 1.5 Clause 5: Qualifications for office
* 1.6 Clause 6: Vacancy and Disability
* 1.7 Clause 7: Salary
* 1.8 Clause 8: Oath or Affirmation

Article II, Section 2: Presidential Powers

* 2.1 Clause 1: Command of military; Opinions of cabinet secretaries; Pardons
* 2.2 Clause 2: Advice and Consent Clause
o 2.2.1 Treaties
o 2.2.2 Appointments
* 2.3 Clause 3: Recess appointments

Article II, Section 3: Presidential responsibilities

* 3.1 Clause 1: State of the Union
* 3.2 Clause 2: Calling Congress into extraordinary session; adjourning them
* 3.3 Clause 3: Receiving foreign representatives
* 3.4 Clause 4: Caring for the faithful execution of the law
* 3.5 Clause 5: Officers' Commission

Article II, Section 4: Impeachment

[jack sommerset]

The line YOU draw is arbitrary. So is the line I draw. Therefore, the line is determined by society at large, and all of these opinions go into what is written up as law.

Our LAW says that we should be free from unreasonable search and seizure, or search without probable cause. Just because YOU are willing to let them search your car does not mean that WE should be willing to. Just because I am willing to pay higher taxes does not mean that YOU should be willing to.

Taxes are too high as is. Obama needs to start lowering them. I know my family would spend more if we had more to spend. Thats a whole other subject.....

Search away piggys. I got no problem with it at all. They start acting like dicks or keeping me there longer than 5 minutes or want to take my tires off then I will have a problem. A few minute car pat down,,,have at it!

[Wild Cobra]

Taxes are too high as is. Obama needs to start lowering them. I know my family would spend more if we had more to spend. Thats a whole other subject.....

Search away piggys. I got no problem with it at all. They start acting like dicks or keeping me there longer than 5 minutes or want to take my tires off then I will have a problem. A few minute car pat down,,,have at it!
Yes, taxes are too high. After my deductions for taxes, retirement savings, medical insurance, etc. I get less than half my pay. Granted, I put the maximum 15% of my pay to retirement, but I pay ridiculously high taxes, and get almost nothing back after filing my return. In fact, I still had to pay taxes to Oregon.

Those of you who are leaching living off my tax dollars... Better yourself for a better job!

[ElNono]

Section 2 of article 2 has nothing to do with what we are discussing. We are off topic anyway. This thread is about searching people. Not protecting the nations security.


LOL, why quitting so early?
We are discussing presidential powers...



Do you mean Article III of the constitution? Section 4 covers impeachment of crimes. That's a very liberal stretch to say exercising executive power is a crime.

No, I meant what I wrote. Article II Section 4. If, as you postulate, the President is above the law, he would be completely immune to impeachment, considering he couldn't possibly commit a 'high crime or misdemeanor'. Why have Section 4 at all? Why bother writing Article III at all?



This from someone who doesn't know the constitution?

Article II, Section 1: President and Vice President

* 1.1 Clause 1: Executive power
* 1.2 Clause 2: Method of choosing electors
* 1.3 Clause 3: Electors
* 1.4 Clause 4: Election day
* 1.5 Clause 5: Qualifications for office
* 1.6 Clause 6: Vacancy and Disability
* 1.7 Clause 7: Salary
* 1.8 Clause 8: Oath or Affirmation

Article II, Section 2: Presidential Powers

* 2.1 Clause 1: Command of military; Opinions of cabinet secretaries; Pardons
* 2.2 Clause 2: Advice and Consent Clause
o 2.2.1 Treaties
o 2.2.2 Appointments
* 2.3 Clause 3: Recess appointments

Article II, Section 3: Presidential responsibilities

* 3.1 Clause 1: State of the Union
* 3.2 Clause 2: Calling Congress into extraordinary session; adjourning them
* 3.3 Clause 3: Receiving foreign representatives
* 3.4 Clause 4: Caring for the faithful execution of the law
* 3.5 Clause 5: Officers' Commission

Article II, Section 4: Impeachment

I wrote my opinion with an open copy of Article II in front of me. It would do you real good if you read past the headings...

[Wild Cobra]

LOL, why quitting so early?
We are discussing presidential powers...

No, we are discussing Executive Powers. The president wears many hats. He is:

President

Commander in Chief

Chief Executor of Law.

I'm simply tired of lawyers shitting on the constitution, twisting the plain simple meanings. We have been over these arguments before in other threads. The points are so simple. Why don't people understand them?

Study at the University of Indoctrination by chance?


No, I meant what I wrote. Article II Section 4. If, as you postulate, the President is above the law, he would be completely immune to impeachment, considering he couldn't possibly commit a 'high crime or misdemeanor'. Why have Section 4 at all? Why bother writing Article III at all?

Things that apply to the president as a person would fall under that. Not items that he is performing as a our president, in a faithful manner.

Law cannot supersede the constitution! Period!


I wrote my opinion with an open copy of Article II in front of me. It would do you real good if you read past the headings...

[Wild Cobra]

The LAW applies to everyone WC. Executing the law means executing it FOR EVERYONE. Not, "execute the law but you don't have to worry about it yourself."
Do you realize the ramifications of that statement?

What if, congress passed a law that the president has to sign into law everything it passed? Now, what happens when a law comes to the presidents desk that he wants to veto?

Now before you say the president can veto the law, requiring him to sign others into law, he can veto that one, and congress can pass it with a super majority.

If the president did not have the understood "Executor of Law" as part of his duties, this could happen, making the president a puppet of congress.

[Blake]

None has so far.

Your discussion with El Nono in this thread is a great demo of the de facto/de jure distinction IMO.

As a matter of law (de jure), no one is above the law and all are equal before it. US Presidents swear to defend, uphold and execute it faithfully. You might say this is the formulaic view. It is a commonplace so long as the law is.

I tend to agree with your gloss on the significance of extra-constitutional activities *in reality (http://www.google.com/search?hl=en&client=firefox-a&rls=org.mozilla:en-US:official&hs=3aK&defl=en&q=define:de+facto&ei=6oX2SeKIFsPgtgef3rmoDw&sa=X&oi=glossary_definition&ct=title)*. Bush flauted the US Constitution and his oath to take care to execute the laws faithfully when he surveilled Americans surreptitiously (http://www.merriam-webster.com/dictionary/surreptitious) and without particularized cause.

The fact that the authority to which GWB appeals has not so far been challenged successfully; and further that the other participants in (de jure) crime have been immunized by the US Congress; and yet further that if his successor has not upheld the same privileges, he has not exactly disavowed them either -- all tend to the result that GWB's *feloniously*acquired surveillance privileges will become the custom and attach normally to the office.

In other words, (de jure) *crime* sometimes becomes de facto legal precedent, instead of perps being prosecuted, amerced and jailed.

Finally, I should say one thing about El Nono's side of it. In the de facto case outlined, we are allowing the legal equivalent of a Star Chamber. Regal fucking discretion. It means the end of rule of law, or at least of equality before it, which is something very similar.

Why so-called conservatives on this board want this power reposed in Barack Obama is beyond me. Maybe Americans think of the President as being a sort of king now. That he deserves the discretion somehow. None seem to care that, God forbid, someday we should elect a venal or conniving man to serve.

(The callow bona fides that has accompanied the novel powers and secrecy claimed by the executive branch, does not accord with the conservative view of human nature, but more chimes with the liberal one IMO. We have a government of men and not angels, but now we have given it the Ring of Gyges (http://plato-dialogues.org/tetra_4/republic/gyges.htm).)

As our connection with republican form attenuates, so does the authority of law. The adoration of raw power usurps civil pieties and also the society those pieties once protected, and the whole world once admired.

phew..... thanks for the links so that I didn't have to look up Ring of Gyges on my own.

solid post :tu

[ElNono]

No, we are discussing Executive Powers. The president wears many hats. He is:

President

Commander in Chief

Chief Executor of Law.


There's no such title as "Chief Executor of Law".
Please stop shitting on the constitution.



I'm simply tired of lawyers shitting on the constitution, twisting the plain simple meanings. We have been over these arguments before in other threads. The points are so simple. Why don't people understand them?


Because none of the points you make exist on the US Constitution as written today. You don't need to be a lawyer to twist words.



Study at the University of Indoctrination by chance?

Things that apply to the president as a person would fall under that. Not items that he is performing as a our president, in a faithful manner.

Law cannot supersede the constitution! Period!

So if a president commits murder and claims to have done it while performing his duties as president, he's not liable?
I need a quote from the US Constitution where it claims such a thing.

[LnGrrrR]

Do you realize the ramifications of that statement?

What if, congress passed a law that the president has to sign into law everything it passed? Now, what happens when a law comes to the presidents desk that he wants to veto?

Now before you say the president can veto the law, requiring him to sign others into law, he can veto that one, and congress can pass it with a super majority.

If the president did not have the understood "Executor of Law" as part of his duties, this could happen, making the president a puppet of congress.

No, because the President could challenge the legality of the law written by Congress, through the judicial branch.

Are you sure you're aware how checks and balances work?

[LnGrrrR]

Law cannot supersede the constitution! Period!

Wtf are you talking about with this "law cannot supersede the Constitution"... are you aware that the JUDICIAL BRANCH determines what is Constitutionally valid?

Tell me WC, how could any court possibly differentiate between what a person did as a "president" as opposed to a "regular" person?

[ElNono]

Do you realize the ramifications of that statement?

What if, congress passed a law that the president has to sign into law everything it passed? Now, what happens when a law comes to the presidents desk that he wants to veto?

Now before you say the president can veto the law, requiring him to sign others into law, he can veto that one, and congress can pass it with a super majority.

If the president did not have the understood "Executor of Law" as part of his duties, this could happen, making the president a puppet of congress.

Do you realize the absurdity of what you just posted?

If Congress hates the executive so much as to attempt to pass a law like you mention, and have super majority to do so, then they don't need to pass that law at all. They already have a supermajority to pass ANY law they want, and your 'Chief Executor of Law' is already a lame duck.
And that case is not only possible, it's legal and Constitutional.
Plus the president appoints judges, so he has more sway as far as challenging the law in court.
The reason Congress has inherently a little more power than the other two branches is pretty obvious.

[ElNono]

Two link that are a MUST READ for you, Wild Cobra:

http://www.usconstitution.net/consttop_sepp.html
http://www.usconstitution.net/consttop_cnb.html

[FromWayDowntown]

What if, congress passed a law that the president has to sign into law everything it passed? Now, what happens when a law comes to the presidents desk that he wants to veto?

Now before you say the president can veto the law, requiring him to sign others into law, he can veto that one, and congress can pass it with a super majority.

If the president did not have the understood "Executor of Law" as part of his duties, this could happen, making the president a puppet of congress.

Such a law would be facially unconstitutional. I can see the point that the President need not comply with unconstitutional legislation -- though I think it's not for the President to decide what is or is not unconstitutional.

What we're talking about is the basics of Constitutional law. The 4th Amendment prohibits warrantless searches or seizures that are unreasonable. Whether you like it or not, the Constitutionally-created Supreme Court of the United States has expressly identified a handful of situations in which a warrantless search may be reasonable under the agreed-upon constructions of the 4th Amendment. (In fact, this thread deals mostly with the redefinition of what is reasoanble in one of those situations.) Reasonableness for constitutional purposes is determined not by what any particular agent of the government might believe, but by those limited situations identified by the Supreme Court. If you're not in one of those limited situations, a search or seizure is unreasonable. Period.

Congress has passed a law -- one that has not been determined to have been unconstitutional -- that requires warrants (albeit mostly secret ones) to support certain wiretapping activities. The law allows some exceptions to permit quick action where national security is threatened, but at bottom, that still-valid law requires a warrant. Practically, the processes are close to being a rubber-stamp matter. But not matter how perfunctory the review of the application, the law still requires a warrant because the commonly-held understanding of the Fourth Amendment requires a warrant in this circumstance. Obviously, the law must apply to the Executive Branch -- and to the President specifically; frankly, I'm not sure what other branch of government would ever undertake wiretaps.

It seems to me absurd to say that: (1) here's a situation in which the Supreme Court has found no exception to the 4th Amendment's warrant requirement; (2) in which Congress has expressly passed a law that requires a warrant while providing a pass-through procedure for obtaining one and doing so in secret; (3) in which the law can only apply to those acting under Article II; but (4) those acting under that power can simply disregard the law -- and wholly ignore the actions of the coordinate branches -- if they can concoct for themselves some trite theory of "reasonableness" to advance in support of their actions.

My basic philosophical quarrel with your position is this: what you're proposing is that the President can decide for himself that another particular situation is one in which a warrantless search is reasonable. But I'm curious where, for you, that would end. If the President decided that he didn't like the way certain members of the media were covering a foreign policy initiative -- in fact, that the coverage was undermining national security somehow -- could he (or she) decide that to undertake a warrantless wiretap of those individuals and permissibly argue that he had decided such wiretaps were "reasonable?" Are you really interested in giving the President (and remember -- any President) that much power to decide whether and when the personal lives of individuals can be invaded on a whim of reasonableness?

[DarkReign]

Are you really interested in giving the President (and remember -- any President) that much power to decide whether and when the personal lives of individuals can be invaded on a whim of reasonableness?

You just asked a question you dont want an answer to.

[FromWayDowntown]

You just asked a question you dont want an answer to.

I actually do. It will be fascinating to read if it's ever offered.

[Wild Cobra]

Tell me WC, how could any court possibly differentiate between what a person did as a "president" as opposed to a "regular" person?
Did you really say that?

Can a person on the street order a military strike?

One example given.

[LnGrrrR]

Did you really say that?

Can a person on the street order a military strike?

One example given.

Right... and power over the military is EXPRESSLY described in the Constitution.

Tell me, given your theory on the subject, if the President shot someone and then produced evidence after the fact that he was a terrorist trying to bomb a building, would that be acceptable?

[FromWayDowntown]

Right... and power over the military is EXPRESSLY described in the Constitution.

Tell me, given your theory on the subject, if the President shot someone and then produced evidence after the fact that he was a terrorist trying to bomb a building, would that be acceptable?

Or better yet, if the President shot and killed someone and then argued after the fact that he believed the person shot was a terrorist trying to bomb a building, could homicide charges be validly asserted?

[Wild Cobra]

Right... and power over the military is EXPRESSLY described in the Constitution.

Tell me, given your theory on the subject, if the President shot someone and then produced evidence after the fact that he was a terrorist trying to bomb a building, would that be acceptable?

OK, but your argument made it sound like the president could not do any actions that a citizen could.

Think about that.

[LnGrrrR]

OK, but your argument made it sound like the president could not do any actions that a citizen could.

Think about that.

It was not meant as such. The President falls under the same laws that citizens do. As President, he also has limited power as Commander in Chief, the power to veto, and a few other functions.

[FromWayDowntown]

OK, but your argument made it sound like the president could not do any actions that a citizen could.

Think about that.

You still haven't dealt with the fact that a warrantless search is constitutionally unreasonable unless it meets one of the handful of exceptions detailed by the Supreme Court.

[Aggie Hoopsfan]

Woohoo! Way to go Supreme Court.

I expect conservatives to decry this, even though this should be something they are in favor of. (Decreases the chance of government poking in where it shouldn't, increases personal liberty.)

Edit: Mainly because conservatives hate big government, unless it leads to a perceived or actual increase in the powers of "law and order", in which they're big fans of it.

I think it's great and would expect it in lines with the Constitution :tu

Oh, and freely admit to being a conservative (though, mainly in the fiscal sense, states rights, etc.).

[Winehole23]

OK, but your argument made it sound like the president could not do any actions that a citizen could.

Think about that.Typical WC move. You misunderstood what LnGrrR said, restated that misunderstanding as an evident absurdity, then tried to hold LnGrrR responsible for the absurdity -- when in fact YOU manufactured it.

Now that LnGrrR's intent is completely clear, you point again to your misstatement of his views, as if that was what he said in the first place.

I dunno, it was pretty clear to me he was talking about one person in two roles: President qua President, and President qua private citizen.

IMO you botched your task of reading. LnGrrR's post-- as originally posted --was clear. The only thing unclear about it was your very improbable misreading.

[Wild Cobra]

It was not meant as such. The President falls under the same laws that citizens do. As President, he also has limited power as Commander in Chief, the power to veto, and a few other functions.
You need to read up on what was known as common law at the time. Not all is spelled out in the constitution, but understood as a function of the office.

[Wild Cobra]

You still haven't dealt with the fact that a warrantless search is constitutionally unreasonable unless it meets one of the handful of exceptions detailed by the Supreme Court.

WTF...

Are you crazy? It's as simple as reasonable or unreasonable, and a gray area. Are you saying it isn't reasonable to wire tap the contacts of known terrorists.

Just how fucking anti-American can you get?

A warrant is an order to take action. Not permission. Please keep what you are speaking of. Keep up the ignorance, and I will stop responding to you.

[Wild Cobra]

Typical WC move. You misunderstood what LnGrrR said, restated that misunderstanding as an evident absurdity, then tried to hold LnGrrR responsible for the absurdity -- when in fact YOU manufactured it.

Now that LnGrrR's intent is completely clear, you point again to your misstatement of his views, as if that was what he said in the first place.

I dunno, it was pretty clear to me he was talking about one person in two roles: President qua President, and President qua private citizen.

IMO you botched your task of reading. LnGrrR's post-- as originally posted --was clear. The only thing unclear about it was your very improbable misreading.
Just answer me this simple question. How can the Commander in Chief, or Executor of law in this country, faithfully execute his role if congress can tie his hand in law that superseded his constitutional duties?

[Winehole23]

Are you saying FISA is unconstitutional?

[ElNono]

Just answer me this simple question. How can the Commander in Chief, or Executor of law in this country, faithfully execute his role if congress can tie his hand in law that superseded his constitutional duties?

Such a law would be unconstitutional, as has been stated numerous times by various posters here. Do you actually read the posts?. And the president, just like any other person, can challenge it in a court of law, including the request of a stay so the law cannot be applied until it's reviewed by the judiciary.

What a president cannot do is arbitrarily break ANY laws because he doesn't agree with them. If he does, then the remedies on Article II, Section 4 need to be applied.

Do you understand how our system of government works now?

And BTW, common law might have been used as judicial precedent on certain cases, but the ultimate law of the land is the Constitution. None of the public servants take an oath to uphold the common laws. They take an oath to uphold the US Constitution.

[FromWayDowntown]

WTF...

Are you crazy? It's as simple as reasonable or unreasonable, and a gray area.

Unlike you, I feel some compunction to adhere to accepted understandings of the constitutional term "reasonable." You believe that term can be defined unilaterally by the President. I'm sure that term has been construed by the Supreme Court in a manner that made FISA necessary in the first place.

Choosing to ignore well-settled precedent doesn't exactly make a legal argument sound.

[LnGrrrR]

You need to read up on what was known as common law at the time. Not all is spelled out in the constitution, but understood as a function of the office.

I know a good deal about common law. Tell me WC, what court precedent declares the President above the law, except as enumerated specifically in the Constitution?

[LnGrrrR]

Just answer me this simple question. How can the Commander in Chief, or Executor of law in this country, faithfully execute his role if congress can tie his hand in law that superseded his constitutional duties?

Can't Congress already tie his hand with by getting enough votes to counter his veto? So I'm not seeing your point.

The Constitution is DESIGNED TO TIE UP THE PRESIDENT.

The Founders DELIBERATELY CREATED A SYSTEM IN WHICH THE PRESIDENT HAD LIMITED DUTIES, AND COULD BE COUNTERED IN MANY WAYS.

His Constiutional duties truly are limited. The role of President has gained great power and esteem, but that's through usage and precedent, not through the Constitution. Apart from being a Commander in Chief, the President does not have alot of authority opposed to executives in many other systems of government.

[ChumpDumper]

Please keep what you are speaking of. Keep up the ignorance, and I will stop responding to you.
:rollin

[Wild Cobra]

Are you saying FISA is unconstitutional?

No, I would say it applies to agencies acting on their own. When directed by the president, they don't apply in aspects that limit his ability to protect this nation in a faithful manner, when acting in that capacity.

[Wild Cobra]

What a president cannot do is arbitrarily break ANY laws because he doesn't agree with them. If he does, then the remedies on Article II, Section 4 need to be applied.

It isn't arbitrary. Law simply cannot supersede constitution. Why do you refuse the adress that?


Do you understand how our system of government works now?

Yes. I also understand lawyers have twisted it, like the successful challenge against part of the McCain/Feingold law.

If president Bush has done wrong, then why isn't it in court? Because everyone in the field knows he was right, that law does not supersede constitution.

[Wild Cobra]

I know a good deal about common law. Tell me WC, what court precedent declares the President above the law, except as enumerated specifically in the Constitution?
I'm getting tired of all this. My point is that law does not supersede the constitution. Nobody is addressing that. You all skirt around it with arguments that pale in comparison to that fact!

Tell me. How can law supersede the constitution?

[FromWayDowntown]

I'm getting tired of all this. My point is that law does not supersede the constitution. Nobody is addressing that. You all skirt around it with arguments that pale in comparison to that fact!

Tell me. How can law supersede the constitution?

You assume that FISA is unconstitutional -- at least in part. My point, all along, is that FISA complies with well-established precedent construing the term "reasonable" as it is used in the Fourth Amendment. Thus, FISA does not in any way supersede the Constitution or, more specifically, the Fourth Amendment.

I get that you believe that 18th Century usages should carry the day in applying the Constitution, but the law of the land is NOT an 18th Century dictionary. It's 230+ years of decisional law by the Supreme Court of the United States. And that law says that absent very specific circumstances -- none of which exist for the sort of wiretapping we're dealing with here -- the executive (regardless of the capacity in which that branch operates) must comply with the warrant requirement.

Again, I'd be really, really interested to read any source material that you can find to suggest that determinations of what is "reasonable" for Fourth Amendment purposes is left solely to the discretion of the President -- ever.

[Wild Cobra]

WayDowntown; If tested in court, we cannot change the meaning or construe the word reasonable/unreasonable. It is clearly reasonable that law cannot supersede the powers given in the constitution. It is our highest law. It is clearly reasonable to follow the communications of known terrorists, who are reasonable suspected of having information necessary to protect this nation.

Funny thing is, we have had similar laws for drug enforcement for years. One primary addition in the Patriot Act was to include following newer methods of communications like the internet, cell phones, satellite phones, etc. Otherwise it is very much the same as prior drug enforcement practices.

Where was the complaints then? is it because that happened before president Bush 43?

Back to my question that I will remain stuck on.

How can law supersede the constitution in a manner that prevents the president from acting in a faithful manner?

[LnGrrrR]

I'm getting tired of all this. My point is that law does not supersede the constitution. Nobody is addressing that. You all skirt around it with arguments that pale in comparison to that fact!

Tell me. How can law supersede the constitution?

Where are you getting this idea that a law is superceding the Constitution? Has there been any law stating that the President can not be a Commander in Chief?

There are laws that do not SUPERCEDE the Constitution, but that DO limit the President's abililty to accomplish things. That is Constitutional. The President must work WITHIN THE FRAMEWORK OF LAW when acting as President.

You are acting like "the law" and "the constitution" are two separate things. The Constitution is law. And laws that are NOT Constitutional can only be determined by the JUDICIARY BRANCH. That is their function. It is not the EXECUTIVE BRANCH's function to decide whether laws are Constitutional or not.

[LnGrrrR]

If president Bush has done wrong, then why isn't it in court? Because everyone in the field knows he was right, that law does not supersede constitution.

Do you know what standing is? That's one of the main arguments/reasons on why he hasn't been brought to court. The other is that there is a strong chance it would be politically disadvantageous (sp?). No one is saying this silly, "law over constitution" theory you're spouting.

[FromWayDowntown]

WayDowntown; If tested in court, we cannot change the meaning or construe the word reasonable/unreasonable.

Are you saying that a Court cannot determine whether a particular warrantless search or seizure is reasonable? If not, are you saying that such a determination has no vitality beyond the case in which it has been made?

Clearly, our Courts HAVE been asked to determine whether a particular warrantless search is a reasonable one or not. And clearly, those Courts HAVE construed the Fourth Amendment to determine when a warrant is required and when one is not. Wiretapping -- even of suspected or known terrorists -- has not, to my knowledge, ever been determined to absolve the searching agency from the burden of obtaining a warrant.

In any event, if you're saying that it's beyond the purview of courts to determine what is or isn't reasonable for Fourth Amendment purposes, there's a very long history of law that you've unilaterally decided is entirely invalid. I can't imagine that any beyond your own lunatic fringe could agree with that position.


It's clearly reasonable that law cannot supersede the powers given in the constitution. It is our highest law.

And what I'm telling you is that well-settled precedent construing the highest law says you gotta get a warrant to wiretap. Period. Again, unless you're in that extremely marginalized minority that believes that Supreme Court precedent construing the Constitution is completely meaningless, that IS the highest law of the land.


Back to my question that I will remain stuck on.

How can law supersede the constitution in a manner that prevents the president from acting in a faithful manner?

Doesn't the President's faithful execution of the laws compel him to abide by precedent construing the Constitution?

If, for instance, the Supreme Court declared the death penalty unconstitutional under the 8th Amendment, could the President order the execution of citizens he believed to be traitors and simply argue that he believed there was nothing cruel or unusual about that punishment?

[Wild Cobra]

Are you saying that a Court cannot determine whether a particular warrantless search or seizure is reasonable? If not, are you saying that such a determination has no vitality beyond the case in which it has been made?

Keep misconstruing my point and I will stop debating you. If yoiu do not understand the differences I make, then you will never understand.

The courts can and do apply distictions in all levels under the president, and that is acceptable. Law applies here. I am specifically saying law cannot tie the hands of the president to do his job!


Clearly, our Courts HAVE been asked to determine whether a particular warrantless search is a reasonable one or not. And clearly, those Courts HAVE construed the Fourth Amendment to determine when a warrant is required and when one is not. Wiretapping -- even of suspected or known terrorists -- has not, to my knowledge, ever been determined to absolve the searching agency from the burden of obtaining a warrant.

Duh...

I am not arguing otherwise. Only that law cannot tie the hands of the presidents responsibilities.


In any event, if you're saying that it's beyond the purview of courts to determine what is or isn't reasonable for Fourth Amendment purposes, there's a very long history of law that you've unilaterally decided is entirely invalid. I can't imagine that any beyond your own lunatic fringe could agree with that position.

It isn't an all or nothing debate. Get over that.


And what I'm telling you is that well-settled precedent construing the highest law says you gotta get a warrant to wiretap. Period. Again, unless you're in that extremely marginalized minority that believes that Supreme Court precedent construing the Constitution is completely meaningless, that IS the highest law of the land.

Will you please stop with arguments outside of what I am saying? I agree lower law enforcements actions can and should be restrained. That was never my point. Bring that asinine argument up again, and I will stop debating you as unworthy.


Doesn't the President's faithful execution of the laws compel him to abide by precedent construing the Constitution?

Only the constitution, and precedent that applies to his office. Not lower levels.


If, for instance, the Supreme Court declared the death penalty unconstitutional under the 8th Amendment, could the President order the execution of citizens he believed to be traitors and simply argue that he believed there was nothing cruel or unusual about that punishment?

No. that does not apply under protecting this nation.

I never heard of the death penalty being repealed? I know a form or two of it has. Not the penalty of death itself. A,m I wrong?

Back to my question.

How can law tie the hands of the president from faithfully doing his job?

[FromWayDowntown]

Sigh. Please let me know when you leave the echo chamber and again feel encumbered by fact and reality.

[Wild Cobra]

Sigh. Please let me know when you leave the echo chamber and again feel encumbered by fact and reality.
Please let me know when you can answer that one question.

[FromWayDowntown]

Please let me know when you can answer that one question.

I've answered the question by pointing out: (1) that precedent says the Fourth Amendment trumps the Article II power when it comes to wiretapping; and (2) that the requirement of obtaining a secret warrant does nothing to impede the President's ability to faithfully execute the laws.

You choose to disregard #1 and pretend that #2 couldn't possibly be true.

[Wild Cobra]

I've answered the question by pointing out: (1) that precedent says the Fourth Amendment trumps the Article II power when it comes to wiretapping; and (2) that the requirement of obtaining a secret warrant does nothing to impede the President's ability to faithfully execute the laws.

You choose to disregard #1 and pretend that #2 couldn't possibly be true.
That is not an acceptable answer because it does not apply to this scenario. It applies to lower levels.

If you showed a precedent that applied to the fourth amendment and article II, I missed it. I know there was past ruling that suggested such a thing in a ruling. That too was not absolute. It still authorized the practice as long as it was reviewed in the aftermath. Is that the one you mean?

[Heath Ledger]

I agree that government shouldn't be poking in where it shouldn't, but government pays for the roads that the public drives on.

I don't see the problem with a search of a vehicle on a public road.

Rodney Gant is a free man, though.


Excuse me? The government pays? Last time I checked we the taxpayers paid for those roads.

[Blake]

Excuse me? The government pays? Last time I checked we the taxpayers paid for those roads.

ugh

[LnGrrrR]

WC, what about this court case? http://en.wikipedia.org/wiki/Boumediene_v._Bush

Doesn't the Court's ruling ties the hands of the President?

[ChumpDumper]

How can law tie the hands of the president from faithfully doing his job?What is your legal definition of "faithfully"?

Your reasoning is positively Nixonian.

[LnGrrrR]

Or hey, Congress could just decide not to fund the military. While not technically creating a law, wouldn't that also bind the President's constitutional authorities?

[Wild Cobra]

WC, what about this court case? http://en.wikipedia.org/wiki/Boumediene_v._Bush

Doesn't the Court's ruling ties the hands of the President?
We are discussing the laws pertaining to unwarranted searches. Not habeas corpus. How does this have anything to do with blocking faithfully performing his duty?

Please stay on topic.

[Wild Cobra]

What is your legal definition of "faithfully"?

Your reasoning is positively Nixonian.
I defined it in an earlier posting. Please stop being such a chump.

[ChumpDumper]

I defined it in an earlier posting. Please stop being such a chump.Could you direct me to it.

And please provide actual case history to support your definition.

That's how these things are done.

[Wild Cobra]

Could you direct me to it.

And please provide actual case history to support your definition.

That's how these things are done.
And let you watse my time like you are in that other thread with Miami...

No, you're in one of your circle-jerk modes. I'm not playing your game today.

[ChumpDumper]

And let you watse my time like you are in that other thread with Miami...

No, you're in one of your circle-jerk modes. I'm not playing your game today.No really, I would like to see how Wild Cobra's constitutional scholarship relates to actual case law.

[ElNono]

I'm still waiting for Wild Cobra to quote where on the US Constitution it clearly states that the Executive branch is allowed interpret the US Constitution and unilaterally decide what constitutes breaking any law. Last I checked that was reserved to the judicial branch.

[FromWayDowntown]

That is not an acceptable answer because it does not apply to this scenario. It applies to lower levels.

If you showed a precedent that applied to the fourth amendment and article II, I missed it. I know there was past ruling that suggested such a thing in a ruling. That too was not absolute. It still authorized the practice as long as it was reviewed in the aftermath. Is that the one you mean?

I'd be interested to see where in the centuries of Fourth Amendment scholarship anyone has said that existing precedent applies only to non-Presidential executive action.

FISA solves the problem of post-hoc review by allowing a short period of warrantless surveillance but requiring that after the permissible time for proceeding without a warrant has passed, an application must be made to the FISC. Again, how does that interfere with the President's ability to "faithfully execute" the laws, as you say?

[Winehole23]

Basically, WC accepts a novel theory of executive power as if it were dispositive retroactively. Because it is true in his own mind, it is for the rest of us.

The courts just haven't caught up with him yet.

[LnGrrrR]

We are discussing the laws pertaining to unwarranted searches. Not habeas corpus. How does this have anything to do with blocking faithfully performing his duty?

Please stay on topic.

You said that law cannot bind the President's hands from executing his job faithfully, correct? That's your argument? well, does that also pertain to Supreme Court decisions?

[LnGrrrR]

Basically, WC accepts a novel theory of executive power as if it were dispositive retroactively. Because it is true in his own mind, it is for the rest of us.

The courts just haven't caught up with him yet.

To be fair, maybe his Constitutional professor was John Yoo?

[Winehole23]

To be fair, maybe his Constitutional professor was John Yoo?To be fair, Jack Goldsmith -- nobody's liberal -- withdrew the Yoo memos as being bad advice and utterly devoid of any legal basis.

But why let history and facts get in the way of sweeping abstractions?

[LnGrrrR]

To be fair, Jack Goldsmith -- nobody's liberal -- withdrew the Yoo memos as being bad advice and utterly devoid of any legal basis.

But why let history and facts get in the way of sweeping abstractions?

You'd have to ask WC that rhetorical question I think :D

[FromWayDowntown]

To be fair, Jack Goldsmith -- nobody's liberal -- withdrew the Yoo memos as being bad advice and utterly devoid of any legal basis.

But why let history and facts get in the way of sweeping abstractions?


Come on -- Jack Goldsmith is a traitor and a conservative in name only.

:)