I agree.
I might pick a nit here and there, but if THIS were an opinion, I’d join it.
As I noted in the OP, the problem is even more fundamental than one of Constitutional interpretation – it is one of basic logic (which is, of course, necessary to interpret the Constitution or anything else).
To refresh everyone’s memory, the relevant quote is:
This is a variation on the “Invisible Cat Fallacy” (a chair occupied by an invisible cat looks like an empty chair; this chair looks empty; therefore, it is logical to conclude that it is occupied by an invisible cat). As I noted, this sort of reasoning is typical of conspiracy theorists (for whom absence of evidence constitutes evidence of a coverup that invites further investigation).
In the present case, as it turned out, the strip search, like the backpack search, discovered no illicit drugs. By Thomas’ reasoning (which declares negative search results to be irrelevant), the initial suspicion “did not dissipate” at this point, either, and the search should therefore have escalated to body-cavity probing, blood testing, stomach pumping, or whatever else occurred to the people in charge.
Thomas was right and his reasoning sound. If you have solid grounds for suspecting that someone is in possession of illegal substances how does the fact that nothing turns up in their backpack 'dissipate that suspicion?
It clearly doesn’t, it simply means that the drugs weren’t in that particular place. How does that do anything towards removing the suspicion unless and until a search of the person themselves is conducted? Then indeed one might begin to think the suspicion baseless.
Let us say that SteveMB is working as a Customs officer. He has reasonable grounds for suspicion that Mr X is carrying drugs into the country. Mr X appears and SteveMB searches his luggage thoroughly. Nothing is found. Suspicions dissipated, **SteveMB ** cheerily allows Mr X to leave.
Mr X smirks as he climbs into a cab patting the reassuring bodyvest full of heroin on his person. He hopes all Customs officers use SteveMB’s reasoning in future.
You’ve said it again, but I still think you’re wrong. But I don’t feel like typing it again.
Your invisible cat thing would be good if Thomas had said that failure to locate the drugs in the bag must mean there were invisible drugs in the bag.
I disagree completely with his overall conclusions, I just see no failure in this particular point of logic.
Er, no. You don’t get to have it both ways. Either negative results compel a dissipation of suspicion (in which case the authorities are required to back off after a reasonable preliminary search) or it does not (in which case the search must be pursued until the evidence is found, whether or not it was even there in the first place).
Also, you don’t get to change the terms of the case. To be analogous to the plaintiff in this case, Mr. X must, in fact, not have any illicit substance on his person.
A customs agent using aldiboronti’s reasoning will eventually have to send his regrets to the colleagues. He will be unable to attend his retirement party, as he will still be busy probing the vivisected remains of the same suspect with an electron microscope, pursuing yet-undissipated suspicion…
“Reasonable grounds”? And that would be what, in this instance?
When I read the news story my first thought was, “Wow, Clarence Thomas really is a worthless sack of shit, isn’t he?” Glad to see it was already well covered in the Pit… although the idea that his colossally stupid comments are actually being supported by a couple of idiots on a site specifically devoted to fighting ignorance is disappointing, but expected I guess considering how vocal said idiots are.
A reasonable preliminary search does not include a search of the person themselves? The police might find themselves rather hampered by such a view of the Constitution.
Bearing in mind that the “drug” ostensibly being distributed by this pusher-in-training was Advil?
That points to an error in Thomas’ reasoning that is more specifically Constitutional that his overarching logical error. All “searches” are not created equal – for example, a set of circumstances that would justify a stop-and-frisk would not necessarily justify a body-cavity search. Thomas’ argument that the failure of a (possibly) justified search “did not dissipate” suspicion attempts to erase such distinctions, permitting even the slightest justification for a search to be escalated ad infinitum.
If you are incapable of distinguishing between a reasonable personal search (of the sort found to be constitutional in Terry v. Ohio, given reasonable grounds for suspicion) and a strip search, you need to go away and educate yourself while the grownups have their conversation.
Perhaps we’re talking at odds here. In the circumstances of the case I agree that further search was probably unwarranted.
But I though Thomas was enunciating a general principle of law, which would be Dracomian to apply here but that doesn’t make his reasoning unsound. In the vast majority of drug searches it would most certainly not be unwarranted to search the person as well as their bags, etc. Do the police consider suspicion dissipated when they stop a car on suspicion of illegal drugs and find nothing in the car? Is a search of the driver unwarranted?
This general principle seems unimpeachable to me. You may certainly consider Thomas an ass for applying the full force of this to a schoolkid but, I repeat, where is the logical flaw in the statement that a preliminary search of the possessions does not dissipate suspicion?
You really are a mannerless oaf, aren’t you?
A reasonably intelligent person might consider that one is educated by exchanging arguments. I have learned much on the SDMB by being shown to be wrong. I have nothing to learn from you.
It has been repeatedly explained that, if a negative result is not regarded as evidence against the initial suspicion, then searches may and must escalate ad infinitum (literally ad infinitum, if the thing searched for was never there in the first place, as the initial suspicion would never be quelled). I’m sorry that you regard offhand dismissal of the same tired argument after it has been shot down as mannerless oafdom, but it is, in fact, an application of the very same principle (which is necessary if one is ever to abandon a blind alley and move on to something that might actually be worth pursuing).
The principle was neatly explained in William Poundstone’s Labyrinths of Reason, where the theory “tapping on a table 16 times will summon a demon” was considered. After this experiment was tried without success, the suggestion was raised that perhaps it actually requires 17 taps. If one does not consider a preliminary negative result to be grounds for dissipation of suspicion, one must spend the rest one one’s days at table-tapping…
Here is more from that quote:
“The analysis of whether the scope of the search here was permissible under that standard is straightforward. Indeed, the majority does not dispute that general background possibilities” establish that students conceal “contraband in their underwear.” Ante, at 10. It acknowledges that school officials had reasonable suspicion to look in Redding’s backpack and outer clothing because if “Wilson’s reasonable suspicion of pill distribution were not understood to support searches of outer clothes and backpack, it would not justify any search worth making.” Ante, at 7. The majority nevertheless concludes that proceeding any further with the search was unreasonable. See ante, at 8– 10; see also ante, at 1 (GINSBURG, J., concurring in part and dissenting in part) (“Any reasonable search for the pills would have ended when inspection of Redding’s backpack and jacket pockets yielded nothing”). But there is no support for this conclusion. The reasonable suspicion that Redding possessed the pills for distribution purposes did not dissipate simply because the search of her back-pack turned up nothing. It was eminently reasonable to conclude that the backpack was empty because Redding was secreting the pills in a place she thought no one would look. See Ross, supra, at 820 (“Contraband goods rarely are strewn” about in plain view; “by their very nature such goods must be withheld from public view”). Redding would not have been the first person to conceal pills in her undergarments. [removed numerous citations to times when people hid pills in their underwear] Nor will she be the last after today’s decision, which announces the safest place to secrete contraband in school.”
Your reading may be different, but mine is that Clarence Thomas just doesn’t care about the facts or the law in this case. As I pointed out in #2 of my lists of his poor opinion, he knows the applicable rule of law (“a search will be permissible in its scope when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction”), but simply ignores it. Rather than deal honestly with the test enumerated by the Supreme Court previously, he simply ignores the test, and instead pretends that if there is reasonable suspicion, then anything goes for the search. He pretends to apply a balancing test by putting all the balance on the side of the suspicion, and declares the majority wrong for actually … well, balancing. For him, if there is something the school officials can call “reasonable suspicion” at all, then anything goes. No matter what the actual facts are, or whether there is an increase in the scope or intrusiveness of the search, as long as there is something resembling “reasonable suspicion”, the girl can be searched wherever that thing can be found, regardless of prior Supreme Court precedent.
And, in support of this predetermined prejudice, he invokes the preposterous notion that a negative result need not be considered in evaluating the level of current suspicion. This is the sort of “reasoning” by which witch-trial defendants who had an ironclad alibi for the time of an alleged Satanic sabbath were determined to possess the power of being in two places at once.
I quite agree that Thomas was being totally unreasonable in this case. My sole argument was with the argument that Thomas was being illogical in saying that a search of the backpack does not eliminate the suspicion that the drugs were being secreted on the person.
I’m still waiting to hear how that is illogical. Suppose he had said quite the reverse: the search of the backpack dissipated the suspicion that the drugs were being secreted on her person. Is that logical?
Speaking only for me, the statement that the “reasonable suspicion” didn’t dissipate is only true if you add the word “completely” at the end. But after searching her bags and doing a pat down, that “reasonable suspicion” certainly did lessen, and lessen enough to not justify further intrusion.
Of course it doesn’t “eliminate” suspicion. So what? No reasonable search is going to do so. But the suspicion itself is not reasonable, as the object of suspicion is a triviality. If she were accused of chewing gum in class, to what lengths may we go to prove that she didn’t swallow it?
Mr. Thomas makes a mockery of reason, and a mockery of law interpreted by reason. He builds a tower of absurdity on the merest scrap of rationality. Even if she were guilty, she would be guilty of a “crime” worthy of no more than a finger-wagging and a “tsk tsk”.
Mr. Thomas (whom I will not ever, ever refer to as “Justice”…) has twisted reason into a grotesque. He is an insult to the robes he infests.
So what? So he was not being illogical in saying just that. That was the initial accusation and it was that, and that alone, I disagreed with.