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Join the conversation! There are now 10 comments on “Police vs Privacy pg 53
  1. Yommy says

    I didn’t really understand the snapping block analogy.
    But in that middle picture he has an extra finger (or a super long thumb)

    • It’s not a snapping block analogy, he just took out the bar that defines the seizure types since in this page, we don’t care what kind of seizure is being done so much as what kind of search follows it.

    • The way I see his hand in that middle picture… Take your hand, act like you’re pointing (with your index finger) and then stick your thumb between your index and middle finger. So your middle, ring, and pinky fingers are curled while your index finder and thumb aren’t. Your hand will pretty much look like the cartoon character’s hand.

      Even then, the thumb is curled the wrong way if I’m interpreting it right. I think it was just a hastily-drawn hand. :)

  2. Jon says

    …it occurs to me that the law could have reached that conclusion a lot more quickly.

    • You’d think so, right? Instead, they’ve been chasing this “stop vs arrest” red herring the whole time. Ironically, the courts are the ones who threw out that red herring, and yet it’s what they’ve been hung up on ever since.

      This is what happens when courts create a rule without a clear underlying principle: you get a mess.

      They do that most commonly when they are focused on getting an outcome rather than figuring out a rule. Here, they were focused on letting police detain people without probable cause, search them, and be able to use the evidence they found.

      This seems like a big leap to take with the Fourth Amendment. But it’s what the courts wanted to do. Why?

      As always, context tells us a lot: The first of these cases were decided in 1968, a time of race riots and lots of anti-cop sentiment. Those pushing for law and order wanted to expand the rules like this. And it’s safe to say the old men on the courts were generally of a like mind.

      And the Supreme Court back then was at its most liberal. This is important, because liberal jurisprudence is in favor of creating new rules. (In Fourth Amendment cases, you’ll often see liberal judges side with the government, and conservative judges side with the defendant. Compare Scalia and Breyer this term.) And liberal judges can be just as outcome-oriented as their conservative colleagues — even more so, perhaps.

      So you had judges willing to create new rules, you had social upheaval seemingly crying out for a new rule, and there was a sentiment that something ought to be done.

      So they did it. They tried to tailor the rule as narrowly as possible — cops could only stop if they had a damn good reason to think crime was afoot; they could not stop just because they wanted to frisk; they could only frisk if they felt they were in danger; the frisk was limited to a mere patdown of the outer clothes; and they could only seize anything if it felt like a weapon.

      But no matter how carefully you tailor a rule, if you’re doing it with your outcome in mind rather than an underlying principle, your rule is going to be hard to apply down the road. Future cases dealing with new situations are going to get little guidance from your rule, and they’re going to be all over the place.

      This kind of thing happens all the time, unfortunately.

      —–

      The principled rule they should have stated in 1968 is very simple:

      A) The Fourth Amendment doesn’t require probable cause to seize a person. It only requires that searches and seizures be REASONABLE.

      B) When the police have good reason to suspect criminal activity, it IS reasonable to let them seize you to investigate, and frisk you for their safety at that time.

      C) If they want to conduct a search for EVIDENCE, they need to have probable cause to believe you committed a crime.

      D) Period.

      • What does “reasonable” denote in this context and what criteria can courts use to determine whether a search or seizure is reasonable?

          • “Reasonable” is subjective by definition. It’s the same as “reasonable doubt”. Something is reasonable if a judge thinks it is or 12 people agree it is.

            I would expect that the cops and/or prosecutor just use their experience, training, and common sense to anticipate what will later be considered to be reasonable down the road before taking action. And then hope that they’re right.

  3. KW says

    Speaking of arrest, I’ve seen several….. things? (don’t ask me what because I can’t remember) lately which imply that you can’t be unarrested without some type of due process.

    • “Unarrested?” They generally have laws about how long they can hold you without charging you with a crime. The limit for “stops” just happens to be “until the reasonab;e time it would take to X.”

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