Forwarded message:
Date: Fri, 16 Aug 1996 11:34:44 -0400 (EDT) From: Black Unicorn <unicorn@schloss.li> Subject: Re: [NOISE] "X-Ray Gun" for imperceptible searches (fwd)
Simple actualy. The police don't need a warrant to collect such information because it is in the public domain (ie not private and therefor requiring a search warrant and probable cause). Therefore anybody (not just cops) can pick it up.
This argument breaks down when one looks at the difference between state action and private action.
Constitutionaly, if we are discussing search warrants there is no difference. The 4th gives the courts no latitude on how to treat police and 'normal' citizens. They must be treated equaly.
Were one to follow this logic, it would come to pass that citizens could get warants to search neighbor's residences.
Since when are police any different than citizens? Where are the police mentioned in the Constitution? (hint: their not) If we are speaking of Constitutional issues police have no powers that a ordinary citizen doesn't. The Constitution has many directives to Courts about what they may do and how they may do it. It at no point covers police other than the section dealing with treasury enforcement. I would contend that citizens have exactly the same rights and privileges as police. In fact if the general citizenry is prohibited something (eg own a fully auto gun) then the police also are prohibited from it. I would further hold that if it is illegal for me to carry a gun on my hip then a police officer should also be prohibited. The whole concept of 'citizens arrest' is based on this Constitutional premise. It has been eroded over the years because it is a clear threat to those who have a profit to make off our government and their mis-use of it. Under some conditions they are allowed exactly this. Last year I had a friend go through a divorce. As part of the agreement he was to retain possession of some guns and other memorabilia. The wife refused to let the husband come onto the property or contact their son. He was placed under a bond to that effect. When he went to the judge my friend was allowed to search the property for those items. He was advised that if he met any resistance to contact the Sheriff's office who would then arrest the wife for contempt of court. It is up to the court, not the police, to decide who is an officer of the court and why. The judge was able to specificaly list the items and had probable cause in that the material was not the wifes but rather the husbands. To allow her to keep them would constitute state sanctioned theft. The court could not use a police officer because they are not empowered to enforce civil decree's. Refusal to abide by the civil decree would constitute a criminal act and the court could then require the police to intercede. The 4th is a directive to courts on when they may issue search warrants. Who executes them is covered (via the 9th and 10th) by state and local law (per extension by the 14th). ARTICLE IV. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
It is becoming more and more popular for governments to limit the ability of scanners and other such detectors to pick up information supposedly to protect privacy. The above states that if it is eminating from the residence (and by extension person) and is picked up off their property, perhaps on or in public space then it is fair game.
Fair game for law enforcement use and can be presented in court, yes.
But police have no Constitutional right to search anything, courts do. In no way can the Constitution be honestly extended to allow police the right to search anyone until directed by a court.
And, I might add, there is a different standard for voice communications however carried. The heat from a indoor pot garden is a different matter, and incidently, the matter on which the question was presented.
I have to disagree. The issue is not what is being carried on the medium but rather can I measure that medium without a warrant if I am a officer of the court or empowered by law as the police. Implicit in this question is the fact that my goal is to gather information to be presented to a court for legal action against the party being monitored. This was a strawman that the court fell for, the defence attorney didn't understand the technology either. To argue that if I measure some quantity and no modulation is present I may present that as evidence, but if modulation is present then I need a warrant to even measure it is ludicrous and screams 'alterior motive'. I would say that the argument of the state of the light (ie on/off) is modulation and therefore may be extended to limit unwarranted measurement. So, all I need to do is to modulate the IR lamps with a commen radio. Then they can watch all they want with cameras and such. No warrant, no evidence. Do you figure X-10 modulation would qualify? Wouldn't the on/off caused by the AC power qualify as modulation of the light?
States such as N. Carolina (per extension via the 14th) should be prohibited from regulating or otherwise controlling possesion and use of radar detectors (in this case) which are currently illegal for private persons to operate.
There is the additional matter of the obstruction of justice issues..
Obstruction of what justice? The goal is to keep the speed down so people are not killed. It is NOT to give the police a means to gather operating funds. If the police were honest in this pursuit they would sit on the side of the road radaring to their hearts content as long as their lights were on indicating they were actively on duty while everyone else zoomed along listening to their detectors buzz. Yes, we would have much less money from tickets but we would have many more living people paying taxes as well. I also suspect that if this were implimented it would take many fewer police to regulate traffic further reducing the needs for money. The law was specificaly and openly put in place because the radar detector decreased the chances of the police from catching and ticketing you, somewhat different than enforcing public safety. The police in a democratic society should never be allowed to skulk around monitoring the populace. Cops hiding in the bushes and other such tactics are not law enforcement but rather state sanctioned theft. Gives 'highwayman' a whole new slant. The argument that by allowing such activity the police are prohibited from catching criminals ignores the fact that the police are firstly enforced with public safety. Their primary job is to PREVENT the incident within their operating parameters and only secondarily to apprehend participants after the fact. Again, a strawman the courts and lots of others have swallowed.
I< tend to agree with you, but I see the arguments on the other side as well.
I also see the other side, I believe the Constitutional approach that I advocate can meet and defeat any argument they may present PROVIDED the court does not have a alterior motive of sustaining the status quo but rather an open goal of enforcing the Constitution for life, liberty, and the pursuit of happiness. I believe that is a rare find indeed. Don't get me wrong. I estimate the chance of my success to win support, let alone actualy getting any of it implimented, as pretty close to nil. But if I don't discuss it on public forums such as this then who else will?
If the police don't need a warrant to collect information then citizens are equaly able to recieve that information as well.
How EXACTLY does this follow?
Because courts, not police are empowered to search. Constitutionaly a police officer may detain you (by local law) but he may NOT search you until presented to a magistrate. This is what was meant by 'fair and speedy trial'.
Since the above ruling states that as long as the emissions are eminating from the site and the reception takes place other than at the site (in this case, being inside the police car) , perhaps along a public highway, then no privacy is involved. This means that citizens have a right, by extension, to know when they are being beamed by radar.
Again, you need to distinguish law enforcement purposes and private purposes.
Constitutionaly there is no distinction. Police are citizens also.
This same chain of logic can be extended to cell phones and such as well.
And yet you need a warrant to intercept cell phone conversation.
Exactly, and by extension you should need a warrant to monitor ANY other form of EM radiation when acting as a officer of the court collecting information or evidence relating to possible or existing proceedings.
This connection is even clearer when one realizes that the only difference between IR and your cell phone eminations is frequency. The intermediate vector boson in both cases is a photon.
And the fact that cellphones carry voice communications.
Is irrelevant. You can't know that fact without first measuring the medium. Sorta defeats the whole purpose. You have to measure it to determine if you can measure it, stupid or premeditated misrepresentation.
It is similar to arresting somebody for wearing a blue shirt but letting the person wearing the red shirt go free.
ANd having the blue shirt say "kill the president" maybe would even out your example.
How? It certainly raises the spectre of 'strawman'. Attempting to change the subject to 'freedom of speech' is not a respectable tactic. What is on the shirt is irrelevant.
The rationale being that since the frequency of the blue shirt is higher it is fundamentaly different then the red shirt.
No, the rational being that the blue shirt carries a communication more complicated than a simple speed reading, or heat emmission.
But how do you determine that without first measuring it? I don't think that 'probable cause' or 'oath or affirmation' were meant to include 'gut feeling'. Jim Choate