[Marxism] Dismantling the 4th Amendment Continues

[Brian Shannon <Brian_Shannon@xxxxxxxxxxx>]

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.

[So much for that.]
______________

[Orin Kerr, January 24, 2005 at 11:51am]
Dog Sniff Precedent Reaffirmed:
This morning the Supreme Court reaffirmed 6-2 ...  that the police do 
not conduct a "search" when they perform narcotics tests because 
narcotics are illegal contraband; interfering with a person's drugs 
does not violate their Fourth Amendment rights because Fourth Amendment 
rights in illegal narcotics cannot be constitutionally "reasonable."
...
One interesting aspect of today's opinion is that Justice Stevens had 
to distinguish the Court's 2001 thermal imaging case ...  that it is a 
search for the police to point an infrared thermal imaging device at 
the exterior wall of a private home.

...The thermal imaging device was used to obtain intimate details in 
the home, whereas the drug-sniffing dog only indicated the presence or 
non-presence of illegal narcotics. ... I wonder if Stevens would have 
preferred in a perfect world to base the opinion not on the nature of 
the information obtained, but rather on the details of how the 
information was collected. In particular, dogs can sniff narcotics from 
the exterior of a car because the bags holding the narcotics are not 
perfectly sealed; some of the drugs leak out into the open, and the 
dogs can smell that. [But this would only be evidence that the 
molecules were in the air, not that they were in the car.]

In the language of Stevens' Kyllo dissent, this was "off the wall" 
surveillance, not "through the wall" surveillance. ... The opinion 
today more fully reconciles the existing cases on use of technologies 
to detect what the human senses cannot ..., further cementing the idea 
of focusing on the nature of the information obtained rather than the 
way the surveillance works.

In my view, this is a potentially troubling development. The Fourth 
Amendment traditionally has focused on how the surveillance occurred, 
rather than the nature of the information obtained. Under the 
traditional approach, the government could not invade your property 
without a warrant no matter what information it wished to obtain. Under 
the rationale followed by the Court today, the government may be free 
to invade your property so long as they only obtain "non private" 
information.

This is particularly troubling in the context of computer searches and 
seizures. Can the police send a computer virus to your computer that 
searches your computer for obscene images, or images of child 
pornography, and then reports back to the police whether such images 
are on your computer — all without probable cause, or even any 
suspicion at all? The traditional answer would have been no: the police 
cannot enter your private property to search even for non-private 
stuff. But thanks to the increasing focus on the nature of the 
information rather than how the information is obtained, it's no longer 
so clear.
http://volokh.com/archives/archive_2005_01_21.shtml#1106585518
OR http://makeashorterlink.com/?N2CD1215A


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