Re: Not necessarily crypto but scary anyway...
A friend advises me that today House Bill 666 passed. This supposedly would allow police officers to use evidence collected illegaly if they 'believed' that it was collected in good faith.
Any word on it?
Yes, this bill is real, and it passed the house resoundingly. (I don't know if the bill number is accurate.) According to the ny times, the republicans have been trying to pass this for a long time, and now they control congress. Interestingly, the ATF and IRS are specifically excluded! The bill was opposed by both civil liberties groups and gun nuts. (Hope I don't offend too many gun nuts.) The ATF was excluded as a sop to the NRA I suppose. During debate, Rep. John Dingell (MI) called the ATF "jackbooted American fascists." Way to go John! David +------------------------------------------------------------------------+ |David Shayer dshayer@netcom.com | |Sentient Software / Symantec shayer@applelink.apple.com | |"Shoot Newt." | +------------------------------------------------------------------------+
With all the gafawing about the bill (666) which just flew by, and the "Dem's" running off about how the constitution is being dismantled, I thought I would cite some case law. I direct your attention to _United States v. Leon_, 468 U.S. 897 (1984). Justice White: This case presents the question whether the Fourth Ammendment exclusionary rule should be modified so as not to bar the use in the prosecution's case-in-chief of evidence obtained by officers acting in reasonable reliance on a search warrant issued by a detached and neutral magistrate but ultimately found to be unsupported by probable cause. [...] The Fourth Amendment contains no provision expressly precluding the use of evidence obtained by violation if its commands, and an examination of its orgin and purposes makes clear that the use of fruits of a past unlawful search or seizure "work[s] no new Fourth Amendment wrong." The wrong condemned by the Amendment is "fully accomplished" by the unlawful search or seizure itself, and the exclusionary rule is neither intended nor able to "cure the invasion of the defendant's rights which he has already suffered." The rule thus operates as "a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrant effect, rahter than a personal constitutional right of the person aggrieved." [...] First, the exclusionary rule is designed to deter police misconduct rather than to punish the errors of judges and magistrates. Second, there exists no evidence suggesting that judges and magistrates are inclined to ignore or subvert the Fourth Amendment or that lawlessness among these actors requires application of the extreme sanction of exclusion. [...] [The exclusionary rule cannot be expected to deter objectively reasonable law enforcement activity...] This is particularly true, we believe, when an officer acting with objective good faith has obtained a search warrant from a judge or magistrate and acted within its scope. In most such cases, there is no police illegality and this nothing to deter. It is the magistrate's responsibility to determine whether the officer's allegations estlablish probable cause and, if so, to issue a warrant comporting in form with the requirements of the Fourth Amendment. In the ordinary case, an officer cannot be expected to question the magistrate's probable-cause determination or his judgement that the form of the warrant is technically sufficent. "[O]nce the warrant issues, there is literally nothing more the policeman can do in seeking to comply with the law." Penalizing the officer for the magistrate's error, rather than his own, cannot logically contribute to the deterrence of Fourth Amendment violations. END. ++++ The bill is really just a restatement. This has been the state of the law for 11 years now. If the bill fails, the essence of the doctrine that everyone is concerned about stands in any event. The question is moot. -uni- (Dark) -- 073BB885A786F666 nemo repente fuit turpissimus - potestas scientiae in usu est 6E6D4506F6EDBC17 quaere verum ad infinitum, loquitur sub rosa - wichtig!
I was under the impression that the House bill would change the status quo in one important respect: under Leon and similar cases, the "good faith" exception only applies when a judge or magistrate has issued a warrant which turns out not to be valid. Under the House bill, this erosion of the exclusionary rule is extended to warrantless searches (presumably including electronic searches) made in "good faith". Since knowledge of what the Constitution requires can destroy good faith, the changes likely to be made in police procedure manuals and curricula are left as an exercise for the reader. OBCrypto: Buy shares in commercial crypto suppliers now. Demand should be going up. A.Michael Froomkin | +1 (305) 284-4285; +1 (305) 284-6506 (fax) U.Miami Law School | MFROOMKI@UMIAMI.IR.MIAMI.EDU PO Box 248087 | Coral Gables, FL 33146 USA | It's barely warm here.
On Fri, 10 Feb 1995, Black Unicorn wrote: [about HR 666]
The bill is really just a restatement. This has been the state of the law for 11 years now.
Right - it is time to change the law. HR 666 won't help in that direction. -Thomas
-----BEGIN PGP SIGNED MESSAGE----- Black Unicorn <unicorn@access.digex.net> wrote:
With all the gafawing about the bill (666) which just flew by, and the "Dem's" running off about how the constitution is being dismantled, I thought I would cite some case law.
I direct your attention to _United States v. Leon_, 468 U.S. 897 (1984).
666 and 1984. Talk about irony. Let's see... Fourth Amendment: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." What part of "shall not be violated" does Justice White not get?
Justice White:
This case presents the question whether the Fourth Amendment exclusionary rule should be modified so as not to bar the use in the prosecution's case-in-chief of evidence obtained by officers acting in reasonable reliance on a search warrant issued by a detached and neutral magistrate but ultimately found to be unsupported by probable cause.
[...]
The Fourth Amendment contains no provision expressly precluding the use of evidence obtained by violation if its commands, and an examination of its orgin and purposes makes clear that the use of fruits of a past unlawful search or seizure "work[s] no new Fourth Amendment wrong." The wrong condemned by the Amendment is "fully accomplished" by the unlawful search or seizure itself, and the exclusionary rule is neither intended nor able to "cure the invasion of the defendant's rights which he has already suffered." The rule thus operates as "a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrant effect, rahter than a personal constitutional right of the person aggrieved."
Obscured in White's casuistry is the fact that if evidence from improper searches can be admitted, then the Fourth Amendment itself is largely made "moot." White's "this shit don't stink" sophism notwithstanding.
... Second,there exists no evidence suggesting that judges and magistrates are inclined to ignore or subvert the Fourth Amendment or that lawlessness among these actors requires application of the extreme sanction of exclusion.
Uh Huh... [ The rest of Justice White's police state apologia omitted.]
END. ++++
The bill is really just a restatement. This has been the state of the law for 11 years now.
If the bill fails, the essence of the doctrine that everyone is concerned about stands in any event.
The question is moot.
This is actually one of the arguments that some proponents of the bill were using during the House Floor Debate that I was watching on CSPAN. If this were the case, then I wondered: Why were they so intent to pass the bill in the first place?? I don't think that the codification of this earlier Fourth Amendment evisceration in federal statute is something I would characterize as moot. I would regard it as a pretty sickening development even if it only added insult to injury. Unfortunately, I doubt that the 666 seal of approval will fail to further contribute to the ongoing destruction of our rights to privacy and due process in this country. - -Michael -----BEGIN PGP SIGNATURE----- Version: 2.6.2 iQCVAwUBLztgftGJlWF+GPx9AQH6jwP8DWSNaOKoF7WORQjsRV3E/UbUxBYCGfLi MKBBCC4TEQPMXy74H4CxJYjwOxBlwFcP0oB9HCAWq1XUX7JYaf7PujdlqHG/j92f ZaoXfXdX052aXlh24P+dvMH9GZkfT71qla7Y78mfraFEXKzglcuVoE2kbgQFms/f MaQSnMWFpuk= =Ox0q -----END PGP SIGNATURE-----
I've got a solution that everyone should love: Let's go ahead and allow illegally obtained evidence - but let's make it a capital offense for a law-enforcement officer to knowingly violate the 4th amendment. Strong 4th amendment protection and another wonderful death penalty all in one! Brad D. On Fri, 10 Feb 1995, Black Unicorn wrote:
With all the gafawing about the bill (666) which just flew by, and the "Dem's" running off about how the constitution is being dismantled, I thought I would cite some case law.
I direct your attention to _United States v. Leon_, 468 U.S. 897 (1984).
Justice White:
This case presents the question whether the Fourth Ammendment exclusionary rule should be modified so as not to bar the use in the prosecution's case-in-chief of evidence obtained by officers acting in reasonable reliance on a search warrant issued by a detached and neutral magistrate but ultimately found to be unsupported by probable cause.
[...]
The Fourth Amendment contains no provision expressly precluding the use of evidence obtained by violation if its commands, and an examination of its orgin and purposes makes clear that the use of fruits of a past unlawful search or seizure "work[s] no new Fourth Amendment wrong." The wrong condemned by the Amendment is "fully accomplished" by the unlawful search or seizure itself, and the exclusionary rule is neither intended nor able to "cure the invasion of the defendant's rights which he has already suffered." The rule thus operates as "a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrant effect, rahter than a personal constitutional right of the person aggrieved."
[...]
First, the exclusionary rule is designed to deter police misconduct rather than to punish the errors of judges and magistrates. Second, there exists no evidence suggesting that judges and magistrates are inclined to ignore or subvert the Fourth Amendment or that lawlessness among these actors requires application of the extreme sanction of exclusion.
[...]
[The exclusionary rule cannot be expected to deter objectively reasonable law enforcement activity...]
This is particularly true, we believe, when an officer acting with objective good faith has obtained a search warrant from a judge or magistrate and acted within its scope. In most such cases, there is no police illegality and this nothing to deter. It is the magistrate's responsibility to determine whether the officer's allegations estlablish probable cause and, if so, to issue a warrant comporting in form with the requirements of the Fourth Amendment. In the ordinary case, an officer cannot be expected to question the magistrate's probable-cause determination or his judgement that the form of the warrant is technically sufficent. "[O]nce the warrant issues, there is literally nothing more the policeman can do in seeking to comply with the law." Penalizing the officer for the magistrate's error, rather than his own, cannot logically contribute to the deterrence of Fourth Amendment violations.
END. ++++
The bill is really just a restatement. This has been the state of the law for 11 years now.
If the bill fails, the essence of the doctrine that everyone is concerned about stands in any event.
The question is moot.
-uni- (Dark)
-- 073BB885A786F666 nemo repente fuit turpissimus - potestas scientiae in usu est 6E6D4506F6EDBC17 quaere verum ad infinitum, loquitur sub rosa - wichtig!
Any punishment on the books for politce who knowingly violate the law seems pointless, since they can technically be prosecuted for violating civil rights anyway. As it is, juries tend to believe police testimony no matter what side they are on (prosecution or defense). It's rare that police are prosecuted for brutaliy cases, and corruption trials fizzle out because of the "blue wall" effect.
participants (7)
-
Black Unicorn -
Brad Dolan -
dshayer＠netcom.com -
Michael Froomkin -
Robert Rothenburg Walking-Owl -
Thomas Grant Edwards -
wfgodot＠iquest.com