Search Waiver Condition Further Erodes 4th Amendment

Discussion in 'Law and Justice System' started by George Costanza, Aug 4, 2010.

  1. George Costanza
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    George Costanza A Friendly Liberal

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    Search Waiver Condition: "Submit yourself or your property, to search and seizure at any time of the day or night by any peace officer, with or without a warrant or probable cause."

    I don't know when the law on this changed. It was somewhere in the 1980's or early 1990's, I think. Under the old rule, if a judge was going to impose a search waiver condition as a condition of probation, it had to appear that the search waiver condition was reasonably related to the crime involved or it could not be imposed. Example: The defendant was operating a hidden meth lab in his garage. Search waiver condition relevant, since the crime showed a propensity for concealing contraband. The defendant got mad at his neighbor and hit him in the mouth. Search waiver condition not relevant, since crime did not involve furtiveness or show a propensity for concealing contraband.

    Somewhere along the line, "activist judges" (conservatives, please note) changed the law on this. Today, a search waiver condition is routinely imposed on EVERY person who is placed on probation, regardless of the crime involved.

    Today, whenever a person with a search waiver condition has any contact whatsoever with any peach officer, they must inform the officer up front, that they are on probation with a search waiver condition. If they don't say anything, the first question out of the cop's mouth is, "you on probation or parole"? (Parole also imposed search waiver conditions in all cases, regardless of the triggering offense.)

    A routine traffic stop for a probationer almost always results in a full car search. Never mind that the guy's only crime was busting his neighbor in the chops while drunk.

    This is yet another example of a criminal justice system which seems determined to give the police more and more power to side step the Constitution.

    When is it going to end?
     
  2. lawbuff
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    lawbuff Member

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    Here is one of the most recent cases, internal citations of course.

    UNITED STATES V. KNIGHTS


    George, don't you see it as an additional preventive measure, to help the EX stay on the right track?

    If they know they are subject to a search without cause, they may stay straight and not jack up the recidivism rate.
     
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  3. George Costanza
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    George Costanza A Friendly Liberal

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    I see that. I also recognize the argument that people who have been convicted of crimes, in general, should have search waiver conditions since convicted criminals are more likely to commit more crimes than those who have never been convicted.

    These are policy decisions. If you buy into the policy, fine. I don't. To me, the protection of the 4th Amendment takes precedence. I never had a problem with the original rule, that if the crime showed a proclivity to conceal contraband, a search waiver condition was justified. I disagreed with the decision to extend it to include all convicted persons on probation and I still do. To my way of thinking, it does not pass the balancing test.

    In order to be clear here - we are only talking about a search waiver condition that is imposed DURING PROBATION. Once probation ends, the search waiver condition is over.

    But might that not be the next step on what I see as a "thlippery thlope" (as Elmer Fudd would call it) here: search waiver condition on all convicted persons FOR THE REST OF THEIR LIVES? It could be done. Let's hope it never is.
     
  4. lawbuff
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    lawbuff Member

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    I see your point, pros and cons.

    The balancing test here, of course to the courts, is what is an UNreasonable search.

    I suppose it is similar to sex offense registration for a crime committed and time served.

    Do you consider 3 strikes laws UNconsitutional under the 4th?

    Enhancement of a sentence for a crime that was committed and time served is analogous to your post, punishment for a crime completed.
     
  5. George Costanza
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    George Costanza A Friendly Liberal

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    I think the Three Strikes law can be unconstitutional as applied in certain cases. I do not think it is unconstitutional as an enhancing statute. If it were, then all enhancing statutes would be unconstitutional.

    I had a defendant who was sent to state prison for 25 to life under the third strike law for stealing a 6-pack of AA batteries from a grocery store. He served 12 years. The Stanford Law School Criminal Defense Clinic had agreed to accept his case and petition for his release on 8th Amendment (cruel and unusual punishment) grounds, when he died in prison.

    Criminal Defense Clinic | Stanford Law School

    Cases like that, I think, are clearly unconstitutional. As presently drafted, the California Three Strikes law is a disaster. If a person has two, strike priors, ANY felony can land him in prison for life. Not all felonies are strikes. As a matter of fact, only a very few of them are. All the triggering offense has to be is "a felony." That can be writing a bad check, stealing from a store, driving a stolen car, etc.

    The California law needs to be rewritten to require that the triggering offense for a life sentence ALSO be a strike - and preferably a violent (as opposed to "serious") strike.

    Personally, I could live with a strike law that put someone away for life who has committed three, violent felonies. A life sentence for stealing some batteries from a store, with two, prior strike convictions, is cruel and unusual, in my opinion.
     
  6. ConHog
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    I have no problem with the waiver, as long as it is for a defined period of time, which it always is. What you're doing is no different than what could be done with any other law. Worrying about what if "they" go to far. I agree, if they decide to extend the waiver clause of a probationary period into an unreasonable period. Something stinks, but as stands Ilike the law, including the fact that the originating crime is irrelevant. This process is what allows probation officers to randomly drug test any parolee, or probationer at any time without warning, just for example. It's a good thing. Don't commit a crime and you have nothing to worry about.

    As for the three strike law. I like the law, but I do think the third strike should be a felony, not a violent felony as you suggest, but a felony. No one should end up in prison for life for a minor theft or other minor crime.
     
  7. George Costanza
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    George Costanza A Friendly Liberal

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    Due to a glitch in the initiative process, there are two kinds of strikes in California. There are what is known as "serious felony" strikes and "violent felony" strikes.

    The statement you make here doesn't make total sense. I think what you are saying is that, in your opinon, the triggering offense should be a strike, rather than "a felony," because, as I said, most felonies are NOT strikes, and include many crimes which, while still felonies, are still relatively minor when compared to the strike offenses themselves.

    I feel that, in order to impose a life sentence, the triggering offense should be limited to a violent felony strike. Serious felony strikes should not be allowed to trigger a life sentence.

    In passing - if a person is convicted of a violent felony in California, they must do 85% of whatever state prison sentence they receive. Normally, they do 50%. If they are being sentenced under the strike law, they must do 80% time unless the triggering offense is a violent felony, in which case they must do the 85%.
     
  8. ConHog
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    Yes, I think I used the wrong terms. Let me clarify. I do think that a third felony should trigger the 3 strikes, meaning any felony. Not just a violent felony. In other words a hot check if the value is high enough, and I'm not sure what the dollar amount is in CA here in AR it is $500, would be strike three and you're out , whereas a say $50 hot check would not be a felony and thus would not be a strike.

    Does that clear up my position?
     
  9. George Costanza
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    George Costanza A Friendly Liberal

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    Well, thank you for your opinion. I don't share it. And neither does the L.A. County District Attorney, who has gone on record as arguing for amending the strike law here in CA to only allow life sentences if the triggering offense is a strike, not just any felony.

    But, as so often happens on boards such as this, others may differ on this issue, depending on their personal philosophy regarding the administration of criminal justice.
     
  10. ConHog
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    And I have no problem with either her or you having a different opinion than my own. It is perfectly within your rights to be wrong. :lol:
     

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