Detect Alignment: Illegal Search Or Not?

[Steve MB]

(Inspired by Baleful Polymorph: assault or not?)

Petitioner Belkar Bitterleaf, currently travelling in the custody of paladin Miko Miyazaki, has obtained a restraining order against future uses of Miyazaki's Detect Evil power to discern his moral alignment.

Supposing for the moment that this restraining order had been appealed (in fact, subsequent events rendered the question moot), how should the court rule?

(The question of alleged health effects caused by alignment detection, as raised in the class-action lawsuit Bitterleaf et al v. Miyazaki, may be considered as a separate issue. Defendant Miyazaki has not disputed the assertion that a high mortality rate is associated with her use of the Detect Evil ability, but has raised an alternative explanation which appears to have some credibility.)

[Bricker]

I don't wish to monopolize the judicial role in these discussions, but if I'm sitting in the motions part this afternoon, I will certainly give my take.

Paladin Miko Miyazaki is a law enforcement officer, a state actor with respect to the Fourth Amendment's prohibitions against search and seizure. The spell "Detect Evil," and other similar spells reveal the "alignment" of a person; such alignment is typically one of "Good," "Evil," or "Neutral," in combination with one of "Lawful," Chaotic," or "Neutral." Respondant Bitterleaf asked for and received a temporary restraining order barring any continued use of any such "Detect Evil" spell against him.

The Commonwealth appeals this order and asks this court to set aside the temporary restraining order.

Unfortunately, the record below is devoid of detailed factual findings. The court below evidently found that as a matter of law, respondant was entitled to an expectation of privacy which the use of this spell breached, but the record does not reflect the factual findings the court made in support of this conclusion. On appeal, we treat the lower court's factual findings with great deference, and will overturn such findings only when they are clearly incredible or made manifestly without support in the record. We will resolve all factual inconsistencies in favor of the party prevailing below. However, we will review the court's conclusion of law de novo - that is, anew, without any particular deference being applied.

Because this is a temporary restraining order, and not a trial on the merits of the claim, the party seeking the restraining order must generally show both a substantial likelihood of success on the merits of his claim, and irreparable harm if the conduct is not restrained.

The first question that must be answered is: as a matter of law, is a the expectation of privacy as to a person's "alignment" something that society is prepared to recognize as reasonable. This is a mixed question of fact and law, but on the admittedly brief record here we are not prepared to say that the court below offered a decision that was unreasonable. Alignment is not immediately apparent to the casual observer, and a person may wish to conceal his alignment for a score of reason that have nothing to do with legal guilt or innocence. Indeed, our legal system punishes actions, not tendencies, and it is well settled that an "Evil" alignment does not compel a person to act in conformity thereiwth at all times, any more than a "Good" alignment compels saintly behavior at all times. Social opprobrium may well result from the revelation that a companion has a particular alignment; financial or employment opportunities may be lost. For these reasons, alignment is a personal characteristic that should be private, and society is prepared to recognize it as such. A spell which reveals alignment therefore implicates the Fourth Amendment.

On the other hand, the revelation of alignment is not the result of a tremendously intrusive physical search. There is no detention required. The law enforcement officer merely casts a brief, directed spell, one which does no damage and reveals only the presence of evil in the alignment. We believe this is analogous to the brief investigatory detention of the type authorized by Terry v. Ohio. A Terry stop may not be occasioned on a mere hunch or inchoate suspicion, but may be performed when the law enforcement officer can point to specific, articulable facts that give rise to a reasonable, articulable suspicion of wrongdoing.

We therefore believe that the interests of justice are best served by modifying the terms of the restraining order sua sponte. Appellant Commonwealth and Paladin Miko Miyazaki are enjoined from using the "Detect Evil" or variations thereof al will. However, if appellants can show a reasonable, articulable suspicion of criminal activity, they have laid sufficient foundation to justify the use of the spell. We believe that respondants will have a substantial likelihood of success on the merits of their claim with that limitation imposed, and have shown they will suffer irreparable harm if appellants are permitted to continue casting this spell without any indicia of suspicion.

[Dunderman]

Originally Posted by Bricker

However, if appellants can show a reasonable, articulable suspicion of criminal activity, they have laid sufficient foundation to justify the use of the spell.

Given that Evil and/or Chaotic alignments only have a correlation with criminal activity, and not a direct 1-1 relationship, why does suspicion of criminal activity justify the use of the spell? Finding out that a suspect is of Evil alignment proves little, and certainly being Evil is not in itself a crime.

[Bricker]

Originally Posted by Priceguy

Given that Evil and/or Chaotic alignments only have a correlation with criminal activity, and not a direct 1-1 relationship, why does suspicion of criminal activity justify the use of the spell? Finding out that a suspect is of Evil alignment proves little, and certainly being Evil is not in itself a crime.

For the same reason that reasonable, articulable suspicion permits the cops to briefly detain you for further investigation now. It's not a crime. and being Evil is not a crime, but those factors may lead to further investigation.

[Revenant Threshold]

Is Miyazaki a law enforcement officer? Paladins may work in the employ of the state, but it is just as likely that one may work outside the law. The situation may be more anagolous to a citizen's arrest.

[Dunderman]

Originally Posted by Bricker

For the same reason that reasonable, articulable suspicion permits the cops to briefly detain you for further investigation now. It's not a crime. and being Evil is not a crime, but those factors may lead to further investigation.

Would the result of a Detect Alignment spell be admissible as evidence in court?

[Revenant Threshold]

Originally Posted by Priceguy

Would the result of a Detect Alignment spell be admissible as evidence in court?

I'm nowhere near being a lawyer but it seems to me that it would be similar to whether the jury can be told of prior convictions.

[Steve MB]

Originally Posted by Revenant Threshold

Is Miyazaki a law enforcement officer?

In the present case, yes. There are some potential complications arising from the fact that the arrest occurred in foreign territory, under an (implicit) claim of universal jurisdiction in cases of "weakening the fabric of the universe", but those are outside the scope of the current question.

[Dunderman]

Originally Posted by Revenant Threshold

I'm nowhere near being a lawyer but it seems to me that it would be similar to whether the jury can be told of prior convictions.

It seems to me that it is closer to somehow finding out if a suspect is a Muslim when investigating an act of terrorism.

[Ludovic]

I must disagree with those that say that it is an invasion of privacy. Is it an invasion of privacy to merely watch someone with your eyes as they walk down the street? The use of the spell merely creates a conduit into which the caster may attune themselves to the natural aura that everyone emanates.

One might be tempted to make the argument that since it may in some instances be illegal to obtain information from public emanations using technology, such as radio airwaves. However, alignment emanations have existed since time immemorial and no one has a license to distribute them.

If the recipient of said unwanted divination were to obscure his or her alignment with undetectable alignment, further attempts to discern alignment may be construed as a breach of privacy, otherwise the assumption of consent must be inferred, as to do otherwise would be just as problematic as prohibiting public photography.

[Steve MB]

Originally Posted by Ludovic

If the recipient of said unwanted divination were to obscure his or her alignment with undetectable alignment, further attempts to discern alignment may be construed as a breach of privacy, otherwise the assumption of consent must be inferred, as to do otherwise would be just as problematic as prohibiting public photography.

In the present case, petitioner Bitterleaf has actively avoided unwanted alignment detection attempts.

[Lord Ashtar]

Originally Posted by Priceguy

Would the result of a Detect Alignment spell be admissible as evidence in court?

I don't see why not. A Detect Lie spell would likely be cast prior to him taking the witness stand, so if Miyazaki perjured it would be found out.

[E-Sabbath]

Former Paladin Miyazaki, it should be noted, had already used her ability, attacked the party leader unprovoked due to a magic item with evil aura, and put the rest of the party members in fear of life and limb.
http://www.giantitp.com/comics/oots0202.html
http://www.giantitp.com/comics/oots0208.html

[DrDeth]

Originally Posted by Bricker

I don't wish to monopolize the judicial role in these discussions, but if I'm sitting in the motions part this afternoon, I will certainly give my take.

.

Thank you that was wonderful!

[Steve MB]

Originally Posted by E-Sabbath

Former Paladin Miyazaki

Objection; the fall of Miyazaki from paladinhood subsequent to her attempts to detect the petitioner's alignment is clearly irrelevant.

[Algher]

Your honor, if I may be permitted to file a Friend-of-the-Court brief on this subject?

I represent the interests of the non-standard Paladins Professional Union

The ability to detect Evil is not simply a spell. It is more akin to a natural ability that, at times, requires spell like actions.

This is not, however, always the case. At times the aura of Evil is so strong that it does not require any deliberate action on the part of the Paladin or other Good worshipping individual.

http://goblinscomic.com/d/20070212.html

To allow this restraining order would be asking the Paladin not to see. You might as well outlaw Dwarves from smelling beer.

We object to this on two grounds:
1) The plaintiff can not ask for privacy while in the public square.
2) The ability of a Paladin to Detect Evil is the equivalent of vision or scent.
3) The Paladin is a registered member of Clergy, and this restraint is a violation of the Separate of Church and State.

Finally, it is in our best interest to know the sources of evil. How this knowledge is used should be only the question for the Court.

Please see the The Village of Hommlet vs. The Temple of Elemental Evil.

[Bricker]

Originally Posted by Revenant Threshold

Is Miyazaki a law enforcement officer? Paladins may work in the employ of the state, but it is just as likely that one may work outside the law. The situation may be more anagolous to a citizen's arrest.

According to the link in the OP, yes.

If Miyazaki is a private citizen, then, as a general principle, the Fourth Amendment is not implicated.

Originally Posted by Priceguy

Would the result of a Detect Alignment spell be admissible as evidence in court?

I would imagine it would be admissible under certain circumstances, under a res gestae theory, for example: if the result of the spell played such an integral part in what happened next that leaving it out destroyed the ability of the fact finder to understand that sequence of events.

[Bricker]

Originally Posted by Ludovic

I must disagree with those that say that it is an invasion of privacy. Is it an invasion of privacy to merely watch someone with your eyes as they walk down the street? The use of the spell merely creates a conduit into which the caster may attune themselves to the natural aura that everyone emanates.

One might be tempted to make the argument that since it may in some instances be illegal to obtain information from public emanations using technology, such as radio airwaves. However, alignment emanations have existed since time immemorial and no one has a license to distribute them.

If the recipient of said unwanted divination were to obscure his or her alignment with undetectable alignment, further attempts to discern alignment may be construed as a breach of privacy, otherwise the assumption of consent must be inferred, as to do otherwise would be just as problematic as prohibiting public photography.

The Supreme Court considered an analgous argument in Kyllo v. US.

In Kyllo, police used an infrared sensor on a house to detect unusally large heat sources, which they then used as athe factual predicate for a search warrant (growing large amounts of plant matter indoor required growing lights, which produce heat). The defendants argued that this was a search within the meaning of the Fourth Amendment; the government argued, as you do, that these are simply natural infrared rays which every house emanates freely into space, observable by everyone with the proper equipment.

The Court disagreed with the government. Writing for the majority, Justice Scalia said that using technology to obtain information one would otherwise need to physically intrude into the home in order to obtain is a search within the meaning of the Fourth Amendment.

Where, as here, the Government uses a device that is not in general public use, to explore details of the home that would previously have been unavailable without physical intrusion, the surveillance is a 'search' and is presumptively unreasonable without a warrant.

Here, of course, the presumption of privacy is slightly smaller, but as we learn from a long line of cases most notably exemplified by Katz v. US: a Fourth Amendment search occurs when the government violates a subjective expectation of privacy that society recognizes as reasonable. We believe that the special technology used to conduct monitoring of invisible heat waves by the police in Kyllo, not routinely avaialble for the public, is an apt analogy for the spell casting or sensing powers of the law-enforcement paladin.

[Bricker]

Originally Posted by Algher

Your honor, if I may be permitted to file a Friend-of-the-Court brief on this subject?

I represent the interests of the non-standard Paladins Professional Union

The ability to detect Evil is not simply a spell. It is more akin to a natural ability that, at times, requires spell like actions.

This is not, however, always the case. At times the aura of Evil is so strong that it does not require any deliberate action on the part of the Paladin or other Good worshipping individual.

http://goblinscomic.com/d/20070212.html

To allow this restraining order would be asking the Paladin not to see. You might as well outlaw Dwarves from smelling beer.

We object to this on two grounds:
1) The plaintiff can not ask for privacy while in the public square.
2) The ability of a Paladin to Detect Evil is the equivalent of vision or scent.
3) The Paladin is a registered member of Clergy, and this restraint is a violation of the Separate of Church and State.

Finally, it is in our best interest to know the sources of evil. How this knowledge is used should be only the question for the Court.

Please see the The Village of Hommlet vs. The Temple of Elemental Evil.

Well, you've proffered several claims that do not appear in the record below, and this shows the importance of a fully developed record.

Remember that the procedural posture of this case was essentially an interlocutory appeal on the issue of the restraining order, which was already granted in the court below. The function of an appellate court is not to hear or weigh evidence; that is for the trial court. The appellate court judges the legal correctness of the trial court's actions.

The proper place for this amicus brief to be heard is at the trial court.

[mlees]

Heh. You guys are at hoot.

[Triskadecamus]

I feel it matters whether the complainant has been subjected to the spell "Know Alignment" which has a personal effect and must be directed upon a target. The ability to "detect evil" is not based on a specific target, but is merely an enhancement of the ability of the paladin to perceive. It is not reasonable to enjoin the paladin from looking at someone he suspects is evil, but it is also not reasonable to decide that that perception qualifies as reasonable grounds to suspect a specific violation of law, which, in this case is entirely the basis of the paladins jurisdiction for any further action.

Tris

[Oakminster]

Just to throw a few more issues on the table--

1) Is there not a line of cases that hold that a drug sniffing dog may check out a vehicle during a traffic stop without violating the 4th amendment? There must still be probable cause to support the traffic stop, but once it's made the dog can be used? It could be argued that a Paladin is like a dog, smelling evil instead of ganja....

2) Admissability of the results of a Detect Evil or Know Alignment Spell is controverial. What proof is there that this spell is reliable? The Courts are well aware of the dangers of character evidence, and place restrictions upon its use. There are accounts of various counter magics that can be employed, and there is also some room for variation in the definition of evil. A priest of Iuz may consider a Paladin of St. Cuthbert the embodiement of all evil....

3) Of course, if the Paladin is not an agent of the state, the pleadings may need to be amended to include claims for unlawful detention, trespass to chattels, assault, battery, etc......

[Happy Scrappy Hero Pup]

Is it possible (having just gone over this in Crim Pro) to analogize the Paladin's ability to detect evil to the ability of a dog to sniff out drugs?


It can be argued that the Paladin's status as a law enforcement officer, coupled with his (class-granted) ability to sens the evil emanating from someone, creates a sui generis ability or perception.

Merely allowing the Paladin to walk by someone and look upon him, sensing his emanations, as it were, might still violate the Fourth Amendment. However, the necessities of law and order do render such searches viable under certain circumstances, such as airports.

While I don't know what kind of a crime "weakening the fabric of the universe" would be, but it would seem pretty serious.

As far as violations of church and state go, I think that should be the purpose of a different thread. if there are no objections, or active suggestions, I will begin it.

What say you all?

[DrDeth]

Originally Posted by Bricker

The Court disagreed with the government. Writing for the majority, Justice Scalia said that using technology to obtain information one would otherwise need to physically intrude into the home in order to obtain is a search within the meaning of the Fourth Amendment.

Here, of course, the presumption of privacy is slightly smaller, but as we learn from a long line of cases most notably exemplified by Katz v. US: a Fourth Amendment search occurs when the government violates a subjective expectation of privacy that society recognizes as reasonable. We believe that the special technology used to conduct monitoring of invisible heat waves by the police in Kyllo, not routinely avaialble for the public, is an apt analogy for the spell casting or sensing powers of the law-enforcement paladin.

Agreed if it is into the Home. However, Police can use search tools in public lands to look for illegally grown weed.

[Miller]

Originally Posted by DrDeth

Agreed if it is into the Home. However, Police can use search tools in public lands to look for illegally grown weed.

But the purpose of the analogy was to argue the use of a similar extraordinary method of detection on a person's body. If such detection is unconstitutional for someone's home, then it seems likely to be found equally unconstitutional for use on someone's person. The applicability of the method on items found in public lands is irrelevent.

[DrDeth]

Originally Posted by Miller

But the purpose of the analogy was to argue the use of a similar extraordinary method of detection on a person's body. If such detection is unconstitutional for someone's home, then it seems likely to be found equally unconstitutional for use on someone's person. The applicability of the method on items found in public lands is irrelevent.

But the Paladin can Detect Evil in an area. If that area is public, is that an invasion of privacy? Are drug/explosive sniffing dogs in airports/bus stations an invasion of privacy?

[Dunderman]

Originally Posted by DrDeth

But the Paladin can Detect Evil in an area. If that area is public, is that an invasion of privacy? Are drug/explosive sniffing dogs in airports/bus stations an invasion of privacy?

No, but possession of drugs is itself a crime, while being Evil is not. This is the point I, as a layman, cannot get past.

If someone were suspected of child molestation, a search warrant were obtained, and fully legal materials that point to a pedophilic orientation were discovered, such as pornographic stories or drawings involving children, would they be admissible as evidence?

[Left Hand of Dorkness]

Think of it this way:
1) A vicious crime is found. Maybe a sacrificed victim near a demon-summoning pentagram.
2) The perp is not known, but it's suspected the perp fled to a nearby church and is blending in with the population there.
3) The paladin goes to the church and detects evil. Of the 100 people in the church, 30 show up as evil; 3 show up as moderately evil; one shows up as extraordinarily evil.
4) The paladin arrests the three moderately evil people and one extraordinarily evil person for further questioning.

Assuming the paladin has police powers, were her actions constitutional?

Daniel

[Bricker]

Originally Posted by Priceguy

No, but possession of drugs is itself a crime, while being Evil is not. This is the point I, as a layman, cannot get past.

If someone were suspected of child molestation, a search warrant were obtained, and fully legal materials that point to a pedophilic orientation were discovered, such as pornographic stories or drawings involving children, would they be admissible as evidence?

Almost certainly. There are a number of rationales for this, some of which are solidly grounded in evidentiary law and some of which are, quite frankly, the products of a bygone age. Example of the latter: I have seen similar material admitted as proof of the defendant's "lustful disposition," which was considered relevant to his propensity to commit the crime charged.

[Bricker]

Originally Posted by Left Hand of Dorkness

Think of it this way:
1) A vicious crime is found. Maybe a sacrificed victim near a demon-summoning pentagram.
2) The perp is not known, but it's suspected the perp fled to a nearby church and is blending in with the population there.
3) The paladin goes to the church and detects evil. Of the 100 people in the church, 30 show up as evil; 3 show up as moderately evil; one shows up as extraordinarily evil.
4) The paladin arrests the three moderately evil people and one extraordinarily evil person for further questioning.

Assuming the paladin has police powers, were her actions constitutional?

Daniel

I would say no. An arrest must be predicated upon probable cause. Probable cause exists when a reasonably prudent man in possession of all the information known to the arresting officer could reasonably believe that it's likely a crime was committed by the person being arrested.

I would say, however, that the information in your hypothetical would justify an investigatory detention -- a brief detainment for further inquiry. Such detentions can be predicated upon "reasonable, articulable suspision," a standard lower than probable cause, but higher than mere unparticularized suspicion.

[Steve MB]

Originally Posted by Happy Scrappy Hero Pup

While I don't know what kind of a crime "weakening the fabric of the universe" would be, but it would seem pretty serious.

During arguments at the trial it was established that, based on the best available knowledge, destruction of all five gates would lead to the destruction of the world. The defendants did not dispute this fact claim, nor dispute the implication that destruction of one of the gates was therefore a serious matter.

[DrDeth]

Originally Posted by Priceguy

No, but possession of drugs is itself a crime, while being Evil is not. This is the point I, as a layman, cannot get past.

Not true. One can possess narcotics perfectly legaly= as a Pharmacist , MD, or with a prescription.

[Left Hand of Dorkness]

Originally Posted by Bricker

I would say no. An arrest must be predicated upon probable cause. Probable cause exists when a reasonably prudent man in possession of all the information known to the arresting officer could reasonably believe that it's likely a crime was committed by the person being arrested.

I would say, however, that the information in your hypothetical would justify an investigatory detention -- a brief detainment for further inquiry. Such detentions can be predicated upon "reasonable, articulable suspision," a standard lower than probable cause, but higher than mere unparticularized suspicion.

It sounds as if the problem is that I used the word "arrests" in step 4 ("The paladin arrests the three moderately evil people and one extraordinarily evil person for further questioning") instead of using "detains." Is this correct? That is, if the paladin detained all four people, would that be constitutional? (I don't mean any snark at all in the question, in case it appears that there is any; I'm honestly not clear on the proper terminology).

Daniel

[aclubs]

Easy case. Though I think it would be better understood as an Equal Protection case.

Detect Evil, if I understand the notion of alignment correctly, detects only the moral disposition (Good/Evil) of the person, which is completely unrelated to the criminality (Lawful/Chaotic) of the person. For the purposes of law enforcement, the Good/Evil nature of a person should have no bearing on whether they can be arrested.

Whether or not the search is reasonable, the use to which that search is put is certainly not. Arresting someone as a potential lawbreaker just because of an Evil disposition is arbitrary discrimination. Assuming Rational Basis analysis applies here, I'd ask the court "What rational basis does the government have in treating Good people different from Evil, if there is no external manifestation in terms of lawbreaking or conduct that would have an impact on society?"

[Elendil's Heir]

Originally Posted by Bricker

...We therefore believe that the interests of justice are best served by modifying the terms of the restraining order sua sponte. ...We believe that respondants will have a substantial likelihood of success on the merits of their claim with that limitation imposed, and have shown they will suffer irreparable harm if appellants are permitted to continue casting this spell without any indicia of suspicion.

Elendil's Heir, C.J., concurring.