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Old 04-19-2013, 21:51   #251
Ohio Copper
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It's called exigency; as in exigent circumstances.
One of the few exceptions to the fourth amendment.



Debate it until your blue in the face, twist it, spin it, place hypotheticals until you begin to call names because no matter how you try; you're still wrong.
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Old 04-19-2013, 21:56   #252
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The Court of Appeals in People v. Mitchell, 39 N.Y.2d 173, cert. denied 426 U.S. 953 set forth a three prong test for analysis of the emergency exception to the Fourth Amendment against warrantless searches and seizures:
  • The police must have reasonable grounds to believe that there is an emergency at hand and an immediate need for their assistance for the protection of life or property;
  • The search must not be primarily motivated by an intent to arrest and seize evidence; and
  • There must be some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched.
Can we agree that based on the totality of circumstances; the above applies?
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Old 04-19-2013, 22:32   #253
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Quote:
Originally Posted by Ohio Copper View Post
The Court of Appeals in People v. Mitchell, 39 N.Y.2d 173, cert. denied 426 U.S. 953 set forth a three prong test for analysis of the emergency exception to the Fourth Amendment against warrantless searches and seizures:
  • The police must have reasonable grounds to believe that there is an emergency at hand and an immediate need for their assistance for the protection of life or property;
  • The search must not be primarily motivated by an intent to arrest and seize evidence; and
  • There must be some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched.
Can we agree that based on the totality of circumstances; the above applies?
What? Are you a rookie or something?

Did you read anything about the case? None of the 3 apply in the context of People v Mitchell.

In People v Mitchell, a hotel chambermaid went missing in the hotel. A resident of the hotel saw her clothes and half eaten lunch on the ground and alerted the manager. The manager solicited the help of the police to search for the missing maid.

Condition #1 - check

They were looking for a missing person, not to arrest a criminal.

Condition #2 - check

The maid was found murdered in the last room of the hotel searched. Because they had not found any sign of her on the rest of the property and were trying to render aid to someone presumed to be in distress, the court ruled they were justified in searching Mitchell's room.

Condition #3 - check

In the Boston case they were looking to make an arrest, not render aid in an emergency situation when they discovered a crime.

A reasonable comparison would be if the bomber had killed an old woman and taken up refuge in her house. Neighbors call because they haven't heard from her in a couple days. Police go to check on her, no one answers the door, they go in and find the bomber. THAT is emergency exception to the 4th Amendment.

Last edited by certifiedfunds; 04-19-2013 at 22:35..
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Old 04-19-2013, 22:37   #254
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Originally Posted by Ohio Copper View Post
It's called exigency; as in exigent circumstances.
One of the few exceptions to the fourth amendment.



Debate it until your blue in the face, twist it, spin it, place hypotheticals until you begin to call names because no matter how you try; you're still wrong.
I think you need to read up a bit more on exigent circumstances before you go and screw up something important.

Last edited by certifiedfunds; 04-19-2013 at 22:37..
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Old 04-19-2013, 22:37   #255
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Perhaps nothing. Perhaps they tear up your house. However, the Bill of Rights was written to restrict the government. Don't need damages. The founders knew you guys were problems.

Laws are written to govern interactions between citizens. The constitution was written to govern the interactions between citizens and government.
So damages aren't the issue. What then is needed to make the violated citizen whole? That's the function of a tort claim: to make the injured person whole. If you can't point at a damage, there's no civil claim.

It must be a criminal case then. The standard redress under criminal law is the exclusionary principle. Evidence gathered by the government in an illegal search is inadmissible. I'm sure the cops doing the door-to-door are okay with the bong on the table not being useable in a criminal trial. But most of the houses searched will have nothing seized.

Charge the team with trespass and conspiracy to commit trespass? Aside from being a misdemeanor in most places, you run into the whole lack of a culpable mental state. You also run up against the "doctrine of competing harms". As old as common law, that says it's proper to break one law when the potential harm from obeying it is greater than the potential harm from violating it. On the one hand, the temporary violation of privacy. OTOH, a armed felon and wanted mass murderer, known to have had firearms and explosives which he's used indiscriminately.

I'm not seeing a conviction. And that was my long-winded explanation of why exigency in the public caretaker role may very well hold here (depending, as always, on the exacts).
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Old 04-19-2013, 22:40   #256
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Apparently killing one cop, wounding another, lobbing pipebombs and a whole mess of other mayhem doesn't qualify as exigent....


Funk this. I'm going back to JuCo.
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Old 04-19-2013, 22:47   #257
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What? Are you a rookie or something?

Did you read anything about the case? None of the 3 apply in the context of People v Mitchell.

In People v Mitchell, a hotel chambermaid went missing in the hotel. A resident of the hotel saw her clothes and half eaten lunch on the ground and alerted the manager. The manager solicited the help of the police to search for the missing maid.

Condition #1 - check

They were looking for a missing person, not to arrest a criminal.

Condition #2 - check

The maid was found murdered in the last room of the hotel searched. Because they had not found any sign of her on the rest of the property and were trying to render aid to someone presumed to be in distress, the court ruled they were justified in searching Mitchell's room.

Condition #3 - check

In the Boston case they were looking to make an arrest, not render aid in an emergency situation when they discovered a crime.

A reasonable comparison would be if the bomber had killed an old woman and taken up refuge in her house. Neighbors call because they haven't heard from her in a couple days. Police go to check on her, no one answers the door, they go in and find the bomber. THAT is emergency exception to the 4th Amendment.
And without checking on each house, given what the bomber and his brother had already done, one would be certain the bomber absolutely DID NOT harm/kill anyone else in that community... how?
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Old 04-19-2013, 22:52   #258
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And without checking on each house, given what the bomber and his brother had already done, one would be certain the bomber absolutely DID NOT harm/kill anyone else in that community... how?

old woman>LEO
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Old 04-19-2013, 22:56   #259
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http://www.volokh.com/2013/04/19/hou...rth-amendment/

Here's a ConLaw professor on the subject. Read the comments as well as the blog entry to get (generally) educated opinions for both points of view.
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Old 04-19-2013, 22:59   #260
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Originally Posted by Sam Spade View Post
http://www.volokh.com/2013/04/19/hou...rth-amendment/

Here's a ConLaw professor on the subject. Read the comments as well as the blog entry to get (generally) educated opinions for both points of view.

Suffice it to say, we are on a whole new playing field with this?
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Old 04-19-2013, 23:05   #261
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I didn't read 11 pages.

What happens if the house/dwelling is secured w/no sign of entry or no one answers the door?
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Old 04-19-2013, 23:19   #262
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Quote:
Originally Posted by Ohio Copper View Post
Apparently killing one cop, wounding another, lobbing pipebombs and a whole mess of other mayhem doesn't qualify as exigent....

Not according the the ruling you cited. That's for sure.

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Funk this. I'm going back to JuCo.
Your parking pass might still be good.

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Old 04-19-2013, 23:20   #263
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Suffice it to say, we are on a whole new playing field with this?
Pretty much.

Prof Kerr notes Indianapolis v Edmond, where the Supremes said terrorism could justify a dragnet-type roadblock under the 4th, but the home has always been given more protection than public activity. But no cases directly on point.

So you go to first principles: protecting innocent life trumps property or privacy.
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Old 04-19-2013, 23:20   #264
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So damages aren't the issue. What then is needed to make the violated citizen whole? That's the function of a tort claim: to make the injured person whole. If you can't point at a damage, there's no civil claim.

It must be a criminal case then. The standard redress under criminal law is the exclusionary principle. Evidence gathered by the government in an illegal search is inadmissible. I'm sure the cops doing the door-to-door are okay with the bong on the table not being useable in a criminal trial. But most of the houses searched will have nothing seized.

Charge the team with trespass and conspiracy to commit trespass? Aside from being a misdemeanor in most places, you run into the whole lack of a culpable mental state. You also run up against the "doctrine of competing harms". As old as common law, that says it's proper to break one law when the potential harm from obeying it is greater than the potential harm from violating it. On the one hand, the temporary violation of privacy. OTOH, a armed felon and wanted mass murderer, known to have had firearms and explosives which he's used indiscriminately.

I'm not seeing a conviction. And that was my long-winded explanation of why exigency in the public caretaker role may very well hold here (depending, as always, on the exacts).
Very interesting. Couple of thoughts:

Quote:
It must be a criminal case then. The standard redress under criminal law is the exclusionary principle.[/B][B] Evidence gathered by the government in an illegal search is inadmissible.
The homeowner sympathizes and gave the bomber refuge. Cops have no idea. Homeowner refuses search. If the cops don't have probable cause to believe he is in the house, nor do they have reason to believe they need to enter without authorization to render aid to someone in trouble -- what happens if they search anyway and find him? Does it endanger the case? Does a co-conspirator walk? (I don't know so I'm asking.)

Here is an interesting read I found on the subject:

http://www.cato.org/sites/cato.org/f...aviskerr_0.pdf
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Old 04-19-2013, 23:22   #265
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Pretty much.

Prof Kerr notes Indianapolis v Edmond, where the Supremes said terrorism could justify a dragnet-type roadblock under the 4th, but the home has always been given more protection than public activity. But no cases directly on point.

So you go to first principles: protecting innocent life trumps property or privacy.
With what limits? Are there any?
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Old 04-19-2013, 23:29   #266
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And without checking on each house, given what the bomber and his brother had already done, one would be certain the bomber absolutely DID NOT harm/kill anyone else in that community... how?
You must have missed Ohio Copper's trump card which has no relation to the Boston situation whatsoever:

Quote:
Originally Posted by Ohio Copper View Post
The Court of Appeals in People v. Mitchell, 39 N.Y.2d 173, cert. denied 426 U.S. 953 set forth a three prong test for analysis of the emergency exception to the Fourth Amendment against warrantless searches and seizures:
  • The police must have reasonable grounds to believe that there is an emergency at hand and an immediate need for their assistance for the protection of life or property;
  • The search must not be primarily motivated by an intent to arrest and seize evidence; and
  • There must be some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched.
Can we agree that based on the totality of circumstances; the above applies?
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Old 04-19-2013, 23:30   #267
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Pretty much.

Prof Kerr notes Indianapolis v Edmond, where the Supremes said terrorism could justify a dragnet-type roadblock under the 4th, but the home has always been given more protection than public activity. But no cases directly on point.

So you go to first principles: protecting innocent life trumps property or privacy.

I figured as much.

Interesting read nonetheless and it will be interesting to see how it plays out in SCOTUS if/when it goes that route.
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Old 04-19-2013, 23:32   #268
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Pretty much.

Prof Kerr notes Indianapolis v Edmond, where the Supremes said terrorism could justify a dragnet-type roadblock under the 4th, but the home has always been given more protection than public activity. But no cases directly on point.

So you go to first principles: protecting innocent life trumps property or privacy.
I thought the Supreme CT ruled the police had no obligation to protect citizens.
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Old 04-19-2013, 23:35   #269
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You must have missed Ohio Copper's trump card which has no relation to the Boston situation whatsoever:

In your obvious rush to berate me you missed the three prong test and how it applies to this incident, Dana.


An individual killing police officers, firing upon them, lobbing pipe bombs and is cornered in an area constitutes an emergency does it not?
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Old 04-19-2013, 23:38   #270
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Quote:
Originally Posted by Sam Spade View Post
http://www.volokh.com/2013/04/19/hou...rth-amendment/

Here's a ConLaw professor on the subject. Read the comments as well as the blog entry to get (generally) educated opinions for both points of view.
I actually found the comments more interesting than the article.

Quote:
A single individual simply can't be so very dangerous as to justify house-to-house searches of more than a handful of homes. And he (or she) can always be caught in another way house-to-house searches are simply the easiest method. The Fourth Amendment doesn't include a convenience excuse.
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Old 04-19-2013, 23:39   #271
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I thought the Supreme CT ruled the police had no obligation to protect citizens.

Again, this is a short sentence taken out of context by a good many of folks.

It is a soundbite meant to misrepresent and bash law enforcement and has been explained ad nauseum on this board.
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Old 04-19-2013, 23:40   #272
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In your obvious rush to berate me you missed the three prong test and how it applies to this incident, Dana.


An individual killing police officers, firing upon them, lobbing pipe bombs and is cornered in an area constitutes an emergency does it not?
It DOESN'T apply to this incident. That's what's so funny.

Go read the actual case you cited so that you will understand the 3 prong test. It isn't even remotely close.

And who's Dana?

Last edited by certifiedfunds; 04-19-2013 at 23:40..
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Old 04-19-2013, 23:40   #273
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With what limits? Are there any?
I'll let anyone with a Gadsden flag work things out on his own.



Flip the question---how many avoidable casualties should your community accept so that cops don't see your messy kitchen?

As I said earlier, this is an art not a science. Yes, at some point the scene becomes too large, the time lag too great, the perimeter too porous and the intrusion too disproportionate. But trying to draw a bright line against any government intrusion into your space is equally wrong.

I've listened to all the "when seconds count, the cops are minutes away" and the "police have no duty to you" comments for years. Well here's the case where they're not in the mode of armed secretaries....but we can't have that? No damages to homes, no seizures of property, only some passing annoyance at most. Maybe this is that elusive example of working for the greater good.
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Old 04-19-2013, 23:45   #274
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The police must have reasonable grounds to believe that there is an emergency at hand and an immediate need for their assistance for the protection of life or property;
The search must not be primarily motivated by an intent to arrest and seize evidence; and
There must be some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched.

Terrorism ≠ emergency.



Got it.
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Old 04-19-2013, 23:47   #275
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I actually found the comments more interesting than the article.


A single individual simply can't be so very dangerous as to justify house-to-house searches of more than a handful of homes. And he (or she) can always be caught in another way house-to-house searches are simply the easiest method. The Fourth Amendment doesn't include a convenience excuse.
It does however, have a reasonableness excuse.

And notice that even the guy whose thoughts you like doesn't put the kabosh on the tactic. He's just wondering about the number. Notice further that he doesn't understand the problem: of course we can catch him another way. That's not the point. The point is to catch him before he detonates himself in a room full of women and children.
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