Okay, if I’m understanding you correctly - you’d rather leave them able to do that for the time being rather than have a Supreme Court ruling against the practice based on ‘implied’ rights in the Consitution. It is the greater evil, in your opinion, to overextend the protections of the Constitution beyond its literal text, rather than the danger of the government intruding on one’s privacy.
The law as it is interpreted draws the line between simply taking notice of that which is in “plain view” on the one hand and conducting a “search” on the other. Bringing specialized equipment (such as a thermal imager) to bear on a specific target is (IMO quite correctly) interpreted as a case of the latter rather than the former. I simply do not see any way of interpreting the word “search” in a way that excludes the deliberate acts of hauling a thermal imaging doodad out of the locker, turning it on, and pointing it. If a cop had gained the ability to see infrared by being bitten by a radioactive pit viper or something, and then happened to notice an indoor pot farm while making his usual rounds, that analysis would not apply.
Of course you’re right - the constitution talks about searches that are reasonable, not searchees. Nevertheless, the term “reasonable” is applied constantly in cases involving issues like these - e.g. employers can’t search your e-mail if you have a reasonable expectation that it’s private (requires a password, or whatever).
Ok, but shat if the cops simply wore thermal imaging gear and pointed it everywhere they looked? If the imaging technology were small and easy enough to use, wouldn’t that remove your objection here?
This seems to me a very useful question too.
If we were to propose a more broadly worded “right to privacy” ammendment, how exactly would we define what is private and what is not. It seems that simply allowing legislators define it is not sufficient. It also seems that imposing some traditional limitation is too restrictive (saying the goverment can’t do anything thier ancestors could not do without a warrant). I’m not sure that passivity is sufficient to define reasonableness. Bouncing a laser off of a window, for instance seems to be intrusive in only the most expansive definition of intrusive. Bouncing some light off of a window seems pretty unobtrusive to me.
The idea that pointing a device defines a search also seems problematic to me. How much attention does it require for a glance to become a search.
Perhaps a reasonable man standard could be developed? If a reasonable person can expect privacy then they should be able to rely that the state will not intrude without cause. I can envision that standard being too restrictive as well, but maybe its a start?
This is perhaps too much for me. ;(
Even Justice Scalia doesn’t take the Fourth Amendment this literally! Not even Thomas!
Sure. And as I said in the thread in which this discussion originally developed, I don’t fault those luminaries. They interpret the meaning of “search” and “reasonable” differently than I. Their interpretation is a perfectly valid exercise of discretion, even though I disagree.
In other words, it’s possible to disagree with a ruling without calling it an “activist” ruling, and it’s possible to agree with an outcome while still decrying an activist approach used to reach it.
Surely you agree that Scalia’s reading of the Fourth Amendment is plausible, right? Given a choice between two plausible interpretations, one which would admittedly result in an injustice (cops watching you in the shower without probable cause) and one that conforms with justice, why not choose the latter?
Of course it’s plausible.
Because I don’t think it’s fair to call it a search - the cops are watching a vague shape in the shower; they can’t see if I’m scrubbing my back or using my shower massager in a way not sanctioned by the manufacturer. The intrusion on privacy is slight.
More to the point, as a judge, my job is not to create the end result I believe is best. My job is to interpret the law as written. Of course, that’s the approach taken by Scalia as well, and I don’t say he’s crazy - I just disagree. But he’s reading the same text I am, and reaching a different conclusion. If I were reviewing him under an abuse of discretion standard, I would not reverse.
- Rick
Surprisingly enough, Justice Stevens joined the dissent. Sometimes I’m surprised by which side the Justices join (except I know to a near cartesian certainty that when a case comes up concerning the rights of prisoners or the death penalty, Justice Thomas will not side with the prisoner).
Speaking of impartiality, what’s your opinion on Bush vs Gore? Do you believe the Court would have ruled exactly the same if the situations of the two candidates were reversed?
Yes, I do.
And may I further point out that I am championing the approach that disdains “how it turns out” in favor of “what is the right analytical method.”
You have more faith in the capacity for human impartiality than I do. I have a hard time believing Scalia would have signed on to an injunction stopping the recount if Gore were ahead because it would cause “irreperable harm” to Gore’s reputation if the ballot counting continued.
That standard would inevitably require judges to decide future cases based on technical minutae (Gadget X produces vague shapes of what is behind the house walls; Gadget Y produces a crystal-clear image; Gadget Z produces an image that is on the fuzzy borderline). If you find Roe v Wade to be a poorly reasoned justification for fine-tuned policy decisions from the bench, you ain’t seen nothin’ yet.
That was not intended as the enunciation of a standard; I was trying to ally the fear that “cops are watching you in the shower.”
Where I think you and I disagree is that the government is allowed to do whatever it wants, so long as there is no constitutional ban in place. I’ve usually felt that the Constitution is there to tell the government what it can do, and some amendments have been put in place to emphasize important aspects of what it cannot. If the Constitution doesn’t suggest that the government can invade people’s privacy, then the government can’t invade people’s privacy. The 9th isn’t a source of rights for people, but it should at least suggest the interpretation that the government doesn’t just do what it wants. The fourth amendment does not create a right of privacy, it permits the government to search in certain circumstances which require probably cause, reasonableness, and an outline of what shall be searched and what shall be seized.
There is no question that thermal imaging is a search. It’s purpose is to extend the ability of any person to know what is happening that isn’t divined by normal sense apparatus in execution of otherwise lawful behavior. It certainly is not in “plain sight”, our eyeballs not detecting infrared emission.
The view that the police should be forbidden from what options may be lawfully available to citizens is fine, because the purpose of things like a Constitution is to outline the behavior of governments, not citizens. No printing press need pay heed to the first amendment unless it is a government run printing press. Employers are not generally required to pay heed to the fourth amendment. Et cetera.
That Joe Schmoe can pick up thermal imaging goggles goes no way to suggest that the police can now use this technology to circumvent amendments forbidding searches. They are free to use them in the execution of a warrant that they would have needed to obtain in absence of this technology.
I like your formulation of the constitution limiting government except where it explicitly grants power. However, how would the formulation above speak to planes flying over marijuana crops? Are you saying that the police cannot fly planes over land and act on what they find without a warrant?
erislover’s formulation is that of the Founders. It says so right in the Constitution itself, specifically Amendments IX and X. The fly-over is a search and should require a warrant.
Meant to hit “preview” sorry.
But even moreso than the amendments the Articles of the Constitution clearly show that the government only has the powers given explicitly.
“Article 1 Section 1: All legislative powers herein granted …”
Obviously if the government had unlimited power, then legislative powers wouldn’t have been granted to it.
“Section 8: The Congress shall have power to …”
Again, this spells out what Congress has the power to do. If it’s not on the list, then it doesn’t have that power. Articles II and III define what powers the President and the Jucicial Branch have. If powers aren’t listed there, then they don’t have that power.
Who granted those powers? It’s in the Preamble.
“We the PEOPLE …”
It follows from that then, that “We the people” hold all the cards and must willingly concede any powers to the government, otherwise it’s a arrogation of power.
I’m not sure I agree with that. What if the police could get the same view of what you’re growing in your yard by climbing up a mountain? If its in plain view from a public vantage point, there’s not a reasonable expectation of privacy.
The skies above your property are in publicly navigable airspace. If any private plane can fly over your house and plainly see illegal activities going on, why should the police be precluded from doing so?
**Amendment IV
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. **
A private plane flying in the public airspace involves someone who is one of the “We the people” who have the power. The Constitution expressly forbids the State from conducting unreasonable and warrantless searches. Reasonable warrantless searches are allowed when police have probable cause to believe that there are emergencies or serious crimes in progress. Growing pot (it takes weeks) is not such an urgent thing that there isn’t time for a judge to issue a warrant for a fly-over.
It is unreasonable to believe a search shouldn’t require a warrant if it’s involves specifically loading up in an airplane and flying around looking for things.