Or, say you have a nice house… in a small town… that needs a couple of new squad cars… and you are new to town… and the cops “find” $10 worth of pot in your house…
Things are random only insofar as we don’t understand them.
Makes me glad I’m renting an apartment and not owning a house 
Could they seize the apartment building from my landlord for my drug possession? Could they seize my friend’s car if I borrowed it to go buy a sack?
`They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety’
- Benjamin Franklin -
Quoting Enigma,
“It’s my recollection that this does not extend to long arms, which, in my opinion it should.”
Rest assured, it does. One of my buddies is a convicted felon and has to pass on all our hunting trips. In fact, he has told me that just being in my house KNOWING there are guns there is a violation.
Of course this is on his word alone, but I figure he would know.
Due process requires, and all confiscation laws contain, an “innocent owner” defense. More troubling, in my view, is the plight of the wife who jointly owns a car with her husband. Husband uses the car to pick up a prostitute, presumably without his wife’s knowledge… and is caught. The car is subject to forfeiture, even thought the wife is not at fault.
- Rick
Actually, my previous post may be unclear. If your friend gave you permission to use the car, it might be subject to confiscation, and you’d be liable to your friend for its loss.
Your landlord is safe, unless he gave you permission to use drugs, or he turned a blind eye to clear evidence that you were using drugs.
- Rick
A case in Malibu, CA several years ago:
Sheriff’s deputies recieved “an anonymous tip” that the owner of a million-dollar estate was growing marijuana on his property. They burst into his home at night. The owner, slightly drunk and seeing armed, unidentified people rushing him, grabbed a gun in self-defense. He was killed.
Turns out the Sheriff’s Dept. wanted to seize the estate and use the money for their department. They killed a guy for it. They didn’t get it though, because there were no drugs to be found.
“I must leave this planet, if only for an hour.” – Antoine de St. Exupéry
Are you a turtle?
That’s a terrible story.
Of course, the sheriff’s department acted improperly, according to your story: they failed to identify themselves.
Of course, the judge or magistrate that issued the warrant also made a grave error: he issued a a “no-knock” warrant based only on the anonymous tip. The rule since at least 1990 has been that unlike a tip from a known informant (whose reputation can be assessed and who can be held responsible if his allegations turn out to be fabricated), anonymous tips are considered far less reliable. They can form the basis for probable cause only if they are accompanied by specific indicia of reliability, and specific statements showing a great likelihood of accuracy. For example, the correct forecast of a subject’s “‘not easily predicted’ movements.” (quoting Alabama v. White, 496 U.S. 325 (1990), the seminal case on anonymous tips).
- Rick
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
Amendment V: No person shall… be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
So clear? What is considered “unreasonable search and seizure”? By whom? What is “just compensation”? By whom?
It’s not black-and-white, that’s why the courts are able to make interpretations. A friend of mine from Louisiana says the cops
can pull you over, alledge charges beyond speeding, and confiscate your car as theirs! Even if you are found not guilty, the property is not returned! How’s that for interpreting the laws of the land?
Here’s another to consider: Surgeon general warns smoking may inhibit the growth of a fetus, but I’ve met women who say “that’s ok by me…I wanted a small baby, anyway!”
So, what’s black-and-white? You can interpret anything any which way you prefer in your favor. That’s why there’s lawyers!
“They’re coming to take me away ha-ha, ho-ho, hee-hee, to the funny farm where life is beautiful all the time… :)” - Napoleon IV
Without a doubt, there are abuses of forfeiture laws. While those with whom I worked were very professional and fair, one of the agents from another department with whom we sometimes coordinated was known to engage in reproachable behavior (not illegal behavior, but in my mind unethical, or at least circumventing the full process intended by the legislature).
In some states, I think the laws are too liberal in favor of the state. For example, I would suggest allowing the seizure of real property only when said property was instrumental in the crime (for example, when more than a couple dozen marijuana plants are grown on the property, or when a drug lab is operating on the property).
In some states, if not the majority (sorry, no stats), the “profits” from forfeitures do not directly benefit the drug enforcement division. In retrospect, that is how it should be; it gives them less reason to orient their activities toward seizures rather than arrests.
First, yes they can take your friend’s car if you borrowed in to buy drugs.
From James Hoyle’s testimony before Subcommittee on Legislation and National Security of the House Comm. On Government Operations, Sept. 30, 1992:
I know this is bathos, but the thing is, people in these situations often do not have legal recourse. So this isn’t an isolated case of abuse that was later corrected; this is precendent.
(Other examples in this link include a Hotel that was seized when patrons sold drugs there, and a couple’s home was seized when a houseguest was caught possessing marijuana.)
Second, Jinx, you’re talking like a troll. You quoted yourself: “Amendment V: No person shall. . . be deprived of. . . property, without due process of law” Due process has been defined pretty rigidly by the courts a number of times. It’s not just an arrest; it involves a court trial. So if a person is deprived of property without that, well, it sound pretty clear to me.
Your Quadell
Note to Raza: Twice I’ve had to shorten hyperlinks you’ve made to keep this page from stretching out. Please spend some time with the FAQ and make a couple of test posts in “About This Message Board” before attempting another long link.
Thanks.
NYC IRL III
is on April 15th. Do you have what it takes?
As you can also say from the recent “surprise” US Supreme Court decision.
LA Times: High Court Bars Police Search Tied to Anonymous Tip
Wait a second! What about the second limitation of how property can be taken? Sounds like the right of eminent domain to me. Is the “due process” limitation of the first statement assumed to be carried past the semi colon such that it is understood in the second statement?
I’m not trying to be a troll, no offense taken. But, my point is that these amendments are really not so easy to read and interpret as absolutes. And, just because you claim that the courts have interpreted the amendment to mean one thing, does not preclude a reversal of said decision at a later time.
“They’re coming to take me away ha-ha, ho-ho, hee-hee, to the funny farm where life is beautiful all the time… :)” - Napoleon IV
Maybe there’s hope these injustices will be stopped soon. SCOTUS has made some very level-headed decisions lately. They recently decided unanimously that an anonymous tip is not good enough to justify police search and seizure, because who knows how credible that person is? Just the other day they said 6-3 that strip joints can be forced to use g-strings and pasties, because their freedom of expression rights are hardly in the same league as a politcal debate. Maybe they’ll take up flagrant violation of due process rights next? Maybe the IRS’s guilty-until-proven-innocent attitude is on the docket somewhere? (Yeah, yeah, I’m dreaming about that last one.)
–It was recently discovered that research causes cancer in rats.
This might be a double post, but this version is my final draft.
Maybe there’s hope these injustices will be stopped soon. The Supreme Court has made some very level-headed decisions lately, mostly in the theme of curbing government, and particularely federal, power. For example, they recently decided unanimously that an anonymous tip is not good enough to justify police search and seizure, because who knows how credible that person is? Shutting down the anti-tobacco initiative because it had no legislative justification was definitely pretty damn brave. Maybe they’ll confront flagrant violation of due process rights next? Maybe the IRS’s guilty-until-proven-innocent attitude is on the docket somewhere? (Yeah, yeah, I’m dreaming about that last one.)
–It was recently discovered that research causes cancer in rats.
I just got this from the ACLU:
They don’t give any more details, and I can’t find news on it anywhere. I’m withholding my joy until I see the fine print, but it looks like this could be really, really good news!
and, Jinx objected:
Perhaps I was too hasty to put the Stigma of Death (troll) on you.
The ammendment contains two limitations on how property can’t be taken. Both conditions have to be met before property can be taken. (i.e. consider “You can’t buy Ritalin unless you pay for it; you can’t buy Ritalin unless you have a prescription.” Both conditions need to be met.)
It’s true the the amendments were generally not written too specifically, and justices can overturn previous interpretations. But the more decisions there are that have been based on previous interpretatios of an amendment, the less likely it is that the interpretation will be overturned. I don’t think there’ve been any SCOTUS decisions based on the tenth Amendment, for instance, but there have been plenty based on the 4th and 5th.
Your Quadell
I absolutely agree that a search should not be warranted merely by an anonymous tip, regardless of the content of the tip. But I strongly disagree that, given reasonable suspicion, police should not be empowered to perform a frisk for firearms. Traditionally, courts have held that an exterior “pat down” for weapons is not a search in the usual sense, and is done strictly for the protection of officers, not to uncover evidence.
The last clause of amendment V does apply to emminent domain rather than civil or criminal forfieture.
Maybe this is stretching it, but a few years ago the USSC struck down the Federal law banning firearms near schools on the grounds that it was not actually regulating interstate commerce. There’s a stirring of Tenth Amendment logic in that ruling, and with luck, that logic will continue on the court.
You’re exactly in line with current case law. The police may stop and frisk, predicated upon a reasonable, articulable suspicion. This is known as a Terry stop, from the Supreme Court case of the same name, and has een good law for over thirty years.
- Rick
Bricker wrote:
Yes, the Terry case was landmark, but not having been on the street in a few years, I am not terribly current.
However what I read in the excerpts of the recent ruling is this: the cops got an anonymous tip that the defendant was carrying a gun; they approached the defendant and frisked the defendant, and found the gun. The court ruled this was improper. NOTE: summaries of legal rulings in the media are generally not a good substitute for reading the entire ruling, because generalizations made by the media can be misleading. I have not read the complete ruling, so I’m being an idiot commenting on it.
So what we have here, IMHO, is a tip of dubious reliability that an individual is carrying a gun - not drugs, not counterfeit currency, not snuff films, but a gun. To me, an anonymous tip is reasonable suspicion, and when encountering the target of the tip, I would reasonably have concerns for my safety, given the nature of the alleged behavior. A frisk is in order here, in seeming contradiction to Terry.
Again, I agree that anonymous tips do not provide the necessary PC for a search; but here the court seems to be saying that the facts do not provide reasonable suspicion for a search - and I vigorously disagree.