Quote of the day
Kathy Kinsley, in comments:
The Fourth Amendment has been dead for quite some time. Ever since the courts decided that any property suspected of being involved in a crime could be seized. Without due process.
Update:
Update 2: Yeah, the fifth amendment is more applicable with respect to due process as people are pointing out in comments. The fifth is not quite dead yet.
April 7th, 2005 at 11:34 am
Uh, wouldn’t seizing property without due process be the FIFTH ammendment?
April 7th, 2005 at 11:37 am
I’d say both. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated
April 7th, 2005 at 12:28 pm
The Fourth Amendment is irrelevant here. “Reasonable” means probable cause, not due process. As far as the Fourth Amendment is concerned, if the search was reasonable, so was the seizure.
April 7th, 2005 at 12:34 pm
Actually, per the amendment itself, reasonable means with a warrant based on probable cause.
April 8th, 2005 at 2:37 pm
Wrong, wrong and double-wrong. There is no grammatically possible reading of the Fourth Amendment that can have the “probable cause” requirement of teh second clause affect the meaning of “unreasonable” in the first. Are you one of those liberals who also thinks the “militia” reference in one clause of the Second Amendment affects the meaning of “the people” in the other?
Your point would of course be valid if the Fourth Amedment required warrants for all searches and seizures. It doesn’t, however. Not as interpreted by the courts, and, in a bizarre coincidence, not by its terms, either. To get a warrant, you need probable cause. To conduct a warrantless search or seizure, you merely need to act reasonably.
April 8th, 2005 at 3:02 pm
I am honestly speechless. No BS. I have seriously read that many times and for some reason always concluded that warrants were required. Having just read and re-read it, it is clear I was wrong.
April 8th, 2005 at 5:16 pm
Don’t feel too bad about it, a lot of people make that mistake. I did myself up until law school, or maybe even post-law school bar “review” (scare quotes because I didn’t take criminal procedure, so my my case, most of that material was not a review).
That said, I may have to backpedal just a little bit. The more I think about it, the harder it is to conceive of a situation where a court might rule that a search or seizure was “reasonable” where the cop lacked probable cause. So in that sense, the underlying legal standard probably is the same; either way, you have to have probable cause, it’s just that in one case you have to convince a judge of that fact in advance.
To test my theory and see if anything really has been lost from the Fourth Amendment (as opposed to everyone’s misconceptions of the same), it would be interesting to find out if there were any asset forfeitures that were challenged in court and upheld without a showing that the cops had probable cause to believe the item was tainted by crime. I’d be very surprised if that has happened, but I could be wrong.
I do agree with you on the substance: government should not be allowed to take your property unless it can show on at least a preponderance of evidence that you committed a crime in order to obtain it. Failure to do so raises due process concerns under the Fifth and Fourteenth Amendments. The likelihood that an item was merely used in a crime – e.g., that you probably sold some drugs, and if you did, you probably stored them in your house and almost certainly transported them in your car – should not be enough, unless such seizures are going to be treated as criminal fines rather than civil, allegedly non-penal remedies.