# Oh, good! A New Constitutional Theory of Privacy!
**URL:** https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942
**Category:** Great Debates
**Created:** [August 11, 2010, 4:06pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942 "2010-08-11T16:06:12Z")
**Posts on this page:** 20
**Page:** 11
### Author:  [@Captain\_Amazing](https://boards.straightdope.com/u/Captain_Amazing)
#### Post date: [July 11, 2011, 7:56pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/201 "2011-07-11T19:56:56Z")
> [@hogarth](#):
>
> How about tapping someone’s cell phone as long as it was only for the purposes of listening in to conversations conducted in public places?
If it could only hear what the one side said, probably allowable. If you could hear both, it’s more dubious, because an observer wouldn’t be able to hear both sides absent some special technology.
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### Author:  [@David42](https://boards.straightdope.com/u/David42)
#### Post date: [July 11, 2011, 8:01pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/202 "2011-07-11T20:01:37Z")
> [@Bricker](#):
>
> In Pennsylvania v. Mimms, the Supreme COurt said that asking a driver to step out of the car, while possibly unjustified under the constitution, is a de minimis additional intrusion on his liberty.
>
> Why does that reasoning not run to the question here?
>
> And this dodge you have about “intent” when the census-taker’s shoes track dirt off the property… there’s no intent of the officers to take a microliter of gas. Their intent is to place and run the GPS.
>
> In the final analysis, though, you’re welcome to your pronouncements. It’s clear that the Court disagrees with you, and so it becomes an empty business: you ask for citations, but when they cut against you, you simply declare by fiat that the Supreme Court is wrong.
>
> Well, everyone’s entitled to their opinion. But the Court’s opinions create law, and allow the practice of GPS placement to continue, and your opinions … er… well, I’m sure they do something.
The officer who already has valid authority to stop the vehicle under probable cause does not infringe on the suspect’s right to be free from seizure of his person because that right is already validly interfered with.
Unless they intend for the GPS to do anything BUT move along with the car, they must intend to use the power of the vehicle to move it along, i.e., gasoline or whatever fuel.
You’re the one who takes issue with my opinion, and you knew it was opinion from the start. Then you made up a constitutional law doctrine that if the government only violates a little bit, then this de minimis can replace probable cause or a warrant. (As I understand your argument) Then you cited to a concurring opinion that didn’t even say what you said it did (as though finding the words de minimis in a S.Ct. Opinion was all you had to do) and then you describe me as dodging?
In my opinion the supreme court is wrong.
And if you REALLY want to claim that the police officers who place a GPS do not intend for that GPS to move along with the car under that car’s power and that car’s power alone, I do not understand exactly what you think they meant to do. Maybe there is a blemish on the chrome inside the bumper and that’s really what they meant to do.
Bricker, you do a good job of understanding the law, usually, from what I have read, but you are falling flat on the job here.
You could with grace concede that your tortured understanding of the de minimis doctrine is not a replacement for probable cause under any precedent in American law, but pretending you came out on top here is ridiculous.
BTW I would like to add, you also err when you claim that California’s law declaring GPS use as described in Jones to be a violation of reasonable expectation of privacy is an amendment to the constitution. This is wrong because the “reasonable expectation of privacy,” is a test, not the constitution. The legislature is free correct the courts and may write statutes about particular findings that a court shall make. It is done all the time.
Of course I recognize that this is your opinion, so I am not going to try to set out to search for precedents to prove how dumb your opinion is.
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### Author:  [@David42](https://boards.straightdope.com/u/David42)
#### Post date: [July 11, 2011, 8:22pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/203 "2011-07-11T20:22:00Z")
> [@Captain\_Amazing](#):
>
> Originally Posted by hogarth
> How about tapping someone’s cell phone as long as it was only for the purposes of listening in to conversations conducted in public places?
If it could only hear what the one side said, probably allowable. If you could hear both, it’s more dubious, because an observer wouldn’t be able to hear both sides absent some special technology.
> [@](#):
>
> If it could only hear what the one side said, probably allowable. If you could hear both, it’s more dubious, because an observer wouldn’t be able to hear both sides absent some special technology.
I would take issue with the whole “reasonable expectation” of privacy analysis and would replace it possibly with “reasonable demand for privacy” analysis.
The reason for this is, currently, I reasonably expect that my phone conversations are being listened to, in consideration of legislation like the patriot act with its warrantless wiretaps and known and repeated police abuse of their powers. Even though I expect that they’re listening, I do not acquiesce to being listened to.
I would ask instead the question, as a test, if a reaonable person would demand privacy for phone calls, and view the whole call rather than just one half of it, i.e., one person’s side of it.
Of course the person who puts the whole call on speakerphone in a public place wouldn’t be making that demand, but it is hard to imagine a setup where the cops are ready to go just waiting on that moment, so its not practical.
I think a reasonable person would demand in public that he not be followed too. If police insist on it, then it is time to go see a lawyer.
That’s why they have to be sneaky about it.
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### Author:  [@Bricker](https://boards.straightdope.com/u/Bricker)
#### Post date: [July 11, 2011, 8:23pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/204 "2011-07-11T20:23:22Z")
> [@David42](#):
>
> The officer who already has valid authority to stop the vehicle under probable cause does not infringe on the suspect’s right to be free from seizure of his person because that right is already validly interfered with.
Yes, but all he has to do is issue a summons. Under what additional authority may he require the driver exit the car?
> [@](#):
>
> Unless they intend for the GPS to do anything BUT move along with the car, they must intend to use the power of the vehicle to move it along, i.e., gasoline or whatever fuel.
Then unless the census taker intends to float over the ground to reach the front porch, he must intend to step on the dirt. And thus take dirt with him.
> [@](#):
>
> You’re the one who takes issue with my opinion, and you knew it was opinion from the start. Then you made up a constitutional law doctrine that if the government only violates a little bit, then this de minimis can replace probable cause or a warrant. (As I understand your argument) Then you cited to a concurring opinion that didn’t even say what you said it did (as though finding the words de minimis in a S.Ct. Opinion was all you had to do) and then you describe me as dodging?
To the contrary, the concept is so blindingly obvious it requires little in the way of explicit demarcation. It’s not necessary for a court to comment on, say, the skin cells that handcuffs might abrade, or the fact that officers executing a search warrant don’t violate the Fourth Amendment if they wash their hands in a suspect’s kitchen, even though they use some of his water.
The only one suggesting any analog of such cockamanie theories is you.
> [@](#):
>
> BTW I would like to add, you also err when you claim that California’s law declaring GPS use as described in Jones to be a violation of reasonable expectation of privacy is an amendment to the constitution. This is wrong because the “reasonable expectation of privacy,” is a test, not the constitution. The legislature is free correct the courts and may write statutes about particular findings that a court shall make. It is done all the time.
>
> Of course I recognize that this is your opinion, so I am not going to try to set out to search for precedents to prove how dumb your opinion is.
What the hell are you talking about? When did I ever talk about California law or Jones as an amendment to the constitution?
I said in the title to this thread that JOnes advanced a new constituitional theory of privacy - having nothing to do with California, mind you - meaning that the court rested its reasoning on the Fourth Amendment. This means that no legislature can meaningfully change it. In the aggregate, it would take two thirds of the federal legislature, followed by three fourths of the states’ legislatures, to change it.
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### Author:  [@Bricker](https://boards.straightdope.com/u/Bricker)
#### Post date: [July 11, 2011, 8:25pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/205 "2011-07-11T20:25:46Z")
> [@David42](#):
>
> I would take issue with the whole “reasonable expectation” of privacy analysis and would replace it possibly with “reasonable demand for privacy” analysis.
Fascinating. Would you care to rework substantive due process, too? How about confrontation clause jurisprudence? Surely there’s something in there you’d like to change?
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### Author:  [@David42](https://boards.straightdope.com/u/David42)
#### Post date: [July 11, 2011, 8:36pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/206 "2011-07-11T20:36:00Z")
Bricker, you said on Page 2 of this thread, on 8-12-2010 @ 11:24 a.m:
“If that is true, then it places us in the curious position of the legislature being able to amend the Constitution by simply majority vote, instead of the two-thirds of each house / three-fourths of the states contemplated by the Constitution. And it places use in the curiouser position of a single state legislature being able to set a high water mark which others must follow.”
This was in response to Hamlet whom you quoted: ‘How about in California, where they have enacted a law that makes it a crime to attach a GPS to someone’s car without their knowledge? Where that law stated: “electronic tracking of a person‘s location without that person‘s knowledge violates that person‘s reasonable expectation of privacy”. Wouldn’t a statement like that from the legislature effect what is a “reasonable expectation of privacy” is?’
As I said, this law directs the court on how to administer the test, rather than amend the constitution.
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### Author:  [@David42](https://boards.straightdope.com/u/David42)
#### Post date: [July 11, 2011, 8:38pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/207 "2011-07-11T20:38:20Z")
> [@Bricker](#):
>
> Fascinating. Would you care to rework substantive due process, too? How about confrontation clause jurisprudence? Surely there’s something in there you’d like to change?
Maybe. if you’d like to open a thread so we’re on topic I might think that over for a while, but if you’re not gonna be any more forthright in your claims of what the LAW IS (rather than your opinion) I probably wouldn’t be too interested in such a thread.
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### Author:  [@hogarth](https://boards.straightdope.com/u/hogarth)
#### Post date: [July 11, 2011, 8:47pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/208 "2011-07-11T20:47:15Z")
> [@Captain\_Amazing](#):
>
> If it could only hear what the one side said, probably allowable. If you could hear both, it’s more dubious, because an observer wouldn’t be able to hear both sides absent some special technology.
Couldn’t you say that about a GPS transmitter as well (i.e., that it gives you information that you wouldn’t be able to know absent some special technology)?
Now that I think about it, I’m intrigued by this comment from earlier:
> [@Bricker](#):
>
> The courts have generally agreed that a GPS’s evidence would be inadmissible if the car entered a large tract of private land.
I’m not sure how this works. Does that mean that, in absence of legislation to the contrary, the police can attempt a surveillance method that could _potentially_ be unconstitutional (e.g. a warrantless wiretap) on the off-chance that the method doesn’t violate the constitution on that particular occasion (e.g. the material obtained by the wiretap could have been clearly heard in a public place, so they wouldn’t have needed a warrant in the first place)?
(I don’t have a dog in this fight, I just think it’s a really interesting subject.)
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### Author:  [@David42](https://boards.straightdope.com/u/David42)
#### Post date: [July 11, 2011, 9:01pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/209 "2011-07-11T21:01:22Z")
> [@Bricker](#):
>
> Yes, but all he has to do is issue a summons. Under what additional authority may he require the driver exit the car?
His safety. The court opinion made this plain.
> [@Bricker](#):
>
> To the contrary, the concept is so blindingly obvious it requires little in the way of explicit demarcation. It’s not necessary for a court to comment on, say, the skin cells that handcuffs might abrade, or the fact that officers executing a search warrant don’t violate the Fourth Amendment if they wash their hands in a suspect’s kitchen, even though they use some of his water.To the contrary, the concept is so blindingly obvious it requires little in the way of explicit demarcation.
Bricker: If the police officer has proper authority to take someone into custody, THEN THE SEIZURE HAS ALREADY OCCURED.
These are not analogs.
In both of these you illustrate with police who are already acting under probable cause at the least.
With the GPS case you propose it as a substitute where there is no probable cause and no warrant issued.
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### Author:  [@Bricker](https://boards.straightdope.com/u/Bricker)
#### Post date: [July 11, 2011, 10:50pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/210 "2011-07-11T22:50:30Z")
> [@David42](#):
>
> Bricker, you said on Page 2 of this thread, on 8-12-2010 @ 11:24 a.m:
>
> “If that is true, then it places us in the curious position of the legislature being able to amend the Constitution by simply majority vote, instead of the two-thirds of each house / three-fourths of the states contemplated by the Constitution. And it places use in the curiouser position of a single state legislature being able to set a high water mark which others must follow.”
> This was in response to Hamlet whom you quoted: ‘How about in California, where they have enacted a law that makes it a crime to attach a GPS to someone’s car without their knowledge? Where that law stated: “electronic tracking of a person‘s location without that person‘s knowledge violates that person‘s reasonable expectation of privacy”. Wouldn’t a statement like that from the legislature effect what is a “reasonable expectation of privacy” is?’
>
> As I said, this law directs the court on how to administer the test, rather than amend the constitution.
Fair enough. I guess I forgot that post in the 333 days since I wrote it. But I concede that I did comment on California.
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### Author:  [@Bricker](https://boards.straightdope.com/u/Bricker)
#### Post date: [July 11, 2011, 10:53pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/211 "2011-07-11T22:53:00Z")
> [@David42](#):
>
> His safety. The court opinion made this plain.
And where is there an officer safety exemption in the Constitution?
Maybe it’s found in Terry v. Ohio, where the Court balanced the MINIMAL intrusion into a person’s liberty and privacy against the state’s interest in officer safety?
> [@](#):
>
> Bricker: If the police officer has proper authority to take someone into custody, THEN THE SEIZURE HAS ALREADY OCCURED.
No. Merely having the authority does not make a seizure occur.
Seizing makes a seizure occur.
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### Author:  [@Bricker](https://boards.straightdope.com/u/Bricker)
#### Post date: [July 11, 2011, 10:55pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/212 "2011-07-11T22:55:29Z")
> [@hogarth](#):
>
> Couldn’t you say that about a GPS transmitter as well (i.e., that it gives you information that you wouldn’t be able to know absent some special technology)?
>
> Now that I think about it, I’m intrigued by this comment from earlier:
>
> I’m not sure how this works. Does that mean that, in absence of legislation to the contrary, the police can attempt a surveillance method that could _potentially_ be unconstitutional (e.g. a warrantless wiretap) on the off-chance that the method doesn’t violate the constitution on that particular occasion (e.g. the material obtained by the wiretap could have been clearly heard in a public place, so they wouldn’t have needed a warrant in the first place)?
>
> (I don’t have a dog in this fight, I just think it’s a really interesting subject.)
The remedy for a surveillance method that violates the Constitution is suppression of the evidence seized thereby.
So the police could, I suppose, choose to roll the dice.
The problem is that the burden would be on them to show that they were not using anything that arose from that method, nor following any investigative leads from it.
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### Author:  [@David42](https://boards.straightdope.com/u/David42)
#### Post date: [July 11, 2011, 11:07pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/213 "2011-07-11T23:07:04Z")
> [@Bricker](#):
>
> No. Merely having the authority does not make a seizure occur.
>
> Seizing makes a seizure occur.
You talk about police who have people in handcuffs and search warrants but claim no seizure (or search, to be relevant to the warrant.)
You’re not addressing the fact that you propose de minimis as a SUBSTITUTE for probable cause, but every example you bring up is one where probable cause already existed prior to the taking.
The problem is your substitution for probable cause. De minimis is not such a doctrine.
What you need is a case where the court approves when the police, for no good reason, take some skin off your wrists, to use your example, not a matter where the police already had a good reason to put someone in handcuffs and losing a little skin was incidental to the handcuffs which they had a right to put on anyway.
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### Author:  [@Captain\_Amazing](https://boards.straightdope.com/u/Captain_Amazing)
#### Post date: [July 12, 2011, 12:52am UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/214 "2011-07-12T00:52:49Z")
> [@David42](#):
>
> You’re not addressing the fact that you propose de minimis as a SUBSTITUTE for probable cause, but every example you bring up is one where probable cause already existed prior to the taking.
He’s not proposing de minimus as a substitute for probable cause. That statement doesn’t even make sense. He’s saying that a de minimus taking isn’t a constitutional violation. The police putting a GPS tracker on your car may be constitutional or it may be unconstitutional, but if it’s unconstitutional, it’s not because the added 10 gram GPS tracker will make your car use more fuel. If the police pat you down, that search may be constitutional or it may be unconstitutional, but if it’s unconstitutional, it’s not because, when they patted you down, they got lint from your shirt on their hands. He’s saying that before something can be considered an unconstitutional taking, it has to be significant enough to matter.
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### Author:  [@David42](https://boards.straightdope.com/u/David42)
#### Post date: [July 12, 2011, 2:28am UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/215 "2011-07-12T02:28:42Z")
> [@Captain\_Amazing](#):
>
> He’s not proposing de minimus as a substitute for probable cause. That statement doesn’t even make sense. He’s saying that a de minimus taking isn’t a constitutional violation. The police putting a GPS tracker on your car may be constitutional or it may be unconstitutional, but if it’s unconstitutional, it’s not because the added 10 gram GPS tracker will make your car use more fuel. If the police pat you down, that search may be constitutional or it may be unconstitutional, but if it’s unconstitutional, it’s not because, when they patted you down, they got lint from your shirt on their hands. He’s saying that before something can be considered an unconstitutional taking, it has to be significant enough to matter.
I see that angle.
But I have asked for a cite. The cite must show that absent probable cause (in your example) the police can pat you down with an initial justification that the patdown is insignificant. (Therefore, all Americans can be lined up for a patdown, since it doesn’t matter.)
The true state of our law is that there first must be a reason to pat you down(probable cause,)and THEN small incidentals do not matter.
Me: “Your honor, I was on my way to post at the Straight Dope Message Boards, trying to fight ignorance, when all of a sudden this policeman put me in handcuffs for no good reason at all.”
Policeman witness: “seemed like he wasn’t doing anything worthwhile, and I didn’t hurt him in any easily quantifiable way, so I cuffed him up for 30 seconds.”
Red Shirt, prosecution witness: “for sure his post would have been worthless.”
Prosecutor: “It was de minimis and therefore no constitutional violation occured.”
Judge to policeman: “What probable cause did you have to cuff him?”
Policeman: “Well, I didn’t like his Led Zeppelin t shirt, and in my experience…”
Judge: “Did you have any facts at all about a crime he may have committed?”
Policeman: Ummm, no…
Prosecutor: He didn’t need any, the fact that any taking was de minimis justified the taking of his person…it was too short to matter and nothing worthwhile was harmed.
Judge:
How would you rule?
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### Author:  [@Captain\_Amazing](https://boards.straightdope.com/u/Captain_Amazing)
#### Post date: [July 12, 2011, 4:30am UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/216 "2011-07-12T04:30:40Z")
> [@](#):
>
> But I have asked for a cite. The cite must show that absent probable cause (in your example) the police can pat you down with an initial justification that the patdown is insignificant. (Therefore, all Americans can be lined up for a patdown, since it doesn’t matter.)
No, that’s not true at all. The police generally CAN’T pat you down for no reason, but that has nothing to do with takings or the rule of de minimis or anything. Look, you know what de minimis is, right? Because you’re using it like you don’t.
As to your other, probably that the policeman acted without probable cause and the detaining was unlawful, but also that no taking occurred. I have no idea what you mean by this:
“Prosecutor: He didn’t need any, the fact that any taking was de minimis justified the taking of his person…it was too short to matter and nothing worthwhile was harmed.”
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### Author:  [@David42](https://boards.straightdope.com/u/David42)
#### Post date: [July 12, 2011, 2:10pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/217 "2011-07-12T14:10:17Z")
> [@Captain\_Amazing](#):
>
> No, that’s not true at all. The police generally CAN’T pat you down for no reason, but that has nothing to do with takings or the rule of de minimis or anything. Look, you know what de minimis is, right? Because you’re using it like you don’t.
I KNOW its not true at all. That’s the whole point. De minimis reasoning is part of a weighing test,
> [@Captain\_Amazing](#):
>
> As to your other, probably that the policeman acted without probable cause and the detaining was unlawful, but also that no taking occurred.
In what manner was the detention unlawful if no taking occured?
> [@Captain\_Amazing](#):
>
> I have no idea what you mean by this:
>
> “Prosecutor: He didn’t need any, the fact that any taking was de minimis justified the taking of his person…it was too short to matter and nothing worthwhile was harmed.”
The last sentence makes little sense because it is the absurd conclusion of Bricker’s position. Its not supposed to make sense. _Reductio ad absurdum._
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### Author:  [@David42](https://boards.straightdope.com/u/David42)
#### Post date: [July 12, 2011, 2:32pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/218 "2011-07-12T14:32:28Z")
> **[de minimis non curat lex](https://www.thefreedictionary.com/de+minimis+non+curat+lex)**
>
> Definition, Synonyms, Translations of de minimis non curat lex by The Free Dictionary
“The law does not concern itself with trifles; - a principle of law, that even if a technical violation of a law appears to exist according to the letter of the law, if the effect is too small to be of consequence, the violation of the law will not be considered as a sufficient cause of action, whether in civil or criminal proceedings.”
> **[De minimis](https://en.wikipedia.org/wiki/De_minimis)**
>
> De minimis is a Latin expression meaning "pertaining to minimal things", normally in the terms de minimis non curat praetor ("The praetor does not concern himself with trifles") or de minimis non curat lex ("The law does not concern itself with trifles"), a legal doctrine by which a court refuses to consider trifling matters. Queen Christina of Sweden (r. 1633–1654) favoured the similar Latin adage, aquila non capit muscās (the eagle does not catch flies).
> The legal history of de minimis dates ...
"Examples of application of the de minimis rule:
"Courts will occasionally not uphold a copyright on modified public domain material if the changes are deemed to be “de minimis”. Similarly, courts have dismissed copyright infringement cases on the grounds that the alleged infringer’s use of the copyrighted work (such as sampling) was so insignificant as to be “de minimis”.[4] However, this ruling, in Bridgeport Music, Inc. v. Dimension Films, was overturned on appeal and the appeals court explicitly declined to recognize a de minimis standard for digital sampling.
"This also has application in the field of auditing and may refer to situations of a low audit risk. It can be verified in ASA 1.
"Under U.S. tax rules, the de minimis rule governs the treatment of small amounts of market discount. Under the rule, if a bond is purchased with a small amount of market discount (an amount less than 0.25% of the face value of a bond times the number of complete years between the bond’s acquisition date and its maturity date) the market discount is considered to be zero. If the market discount is less than the de minimis amount, the discount on the bond is generally treated as a capital gain upon disposition or redemption rather than as ordinary income.[5]
"Under IRS guidelines, the de minimis rule can also apply to any benefit, property, or service provided to an employee that has so little value that reporting for it would be unreasonable or administratively impracticable; for example, use of a company photocopier to copy personal documents – see de minimis fringe benefit. Cash is not excludable, regardless of the amount.[6]
"The de minimis rule in American drug law requires a usable quantity of the substance in question before charges can be brought, known as the minority rule.[7]
"In Canada, de minimis is often used as a standard of whether a criminal offence is made out at a preliminary stage. For a charge of second degree murder, the test being: “could the jury reasonably conclude that accused actions were a contributing cause, beyond de minimis, of the victim’s death.”[8]
"Under European Union competition law some agreements infringing Article 101(1) of the TFEU (formerly Article 81(1) of the EC Treaty) are considered to be “de minimis” and therefore accepted. Horizontal agreement, that is one between competitors, will usually be de minimis where the parties’ market share is 10% or less, and a vertical agreement, between undertakings operating at different levels of the market, where it is 15% or less.[9]
“The European Union de minimis “state aid” regulation allows for aid of up to €200,000 to be provided from public funds to any business enterprise over a period of three years.[10]”
There is nothing here concerning constituional law.
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### Author:  [@David42](https://boards.straightdope.com/u/David42)
#### Post date: [July 12, 2011, 2:38pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/219 "2011-07-12T14:38:08Z")
“Whenever a police officer accosts an individual and restrains his freedom to walk away, he has “seized” that person within the meaning of the Fourth Amendment.”
Terry V. Ohio.
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### Author:  [@Bricker](https://boards.straightdope.com/u/Bricker)
#### Post date: [July 12, 2011, 3:51pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/220 "2011-07-12T15:51:50Z")
> [@David42](#):
>
> The true state of our law is that there first must be a reason to pat you down(probable cause,)and THEN small incidentals do not matter.
No.
A brief pat down, covering the outer portions of clothing, is permissible even without probable cause, under the case you quote above, _Terry v. US_. That’s because such a patdown is a MINIMAL intrusion, and justified by officer safety.
> [@](#):
>
> Me: “Your honor, I was on my way to post at the Straight Dope Message Boards, trying to fight ignorance, when all of a sudden this policeman put me in handcuffs for no good reason at all.”
>
> Policeman witness: “seemed like he wasn’t doing anything worthwhile, and I didn’t hurt him in any easily quantifiable way, so I cuffed him up for 30 seconds.”
>
> Red Shirt, prosecution witness: “for sure his post would have been worthless.”
>
> Prosecutor: “It was de minimis and therefore no constitutional violation occured.”
>
> Judge to policeman: “What probable cause did you have to cuff him?”
>
> Policeman: “Well, I didn’t like his Led Zeppelin t shirt, and in my experience…”
>
> Judge: “Did you have any facts at all about a crime he may have committed?”
>
> Policeman: Ummm, no…
>
> Prosecutor: He didn’t need any, the fact that any taking was de minimis justified the taking of his person…it was too short to matter and nothing worthwhile was harmed.
>
> Judge:
>
> How would you rule?
I’d wait for the prosecutor, whose questions seem conspicously absent in your farcical exchange, to question his witness about what reasonable, articulable suspicion existed – a standard lower than probable cause – for the initial detention, and then what specific, articulable facts existed that created a concern for officer safety. Assuming the witness had such facts, I would rule that even though probable cause did not exist, the brief de minimis pat-down conducted by the officer was justified as a _Terry_ stop, a case which permits brief, minimal detentions and brief, minimal intrusions such as pat-down searches, when probable cause does not exist.
I would then _sua sponte_ advise you to retain an attorney, because your attorney will be well versed in search and seizure law, and can effectively represent your interests, and it’s clear that your own knowledge of search and seizure law is woefully lacking and severely handicaps your attempt to represent yourself.
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