Sometimes exceptions are the rule.
by Richard Barbuto
The Bill of Rights was not enacted to protect the citizenry from overzealous defense lawyers. What a concept. The framers of the constitution were seeking to make sure the people had protection from the agents of the government or, for the purposes of this blog, protection from the police.
This should not come as any great shock to students of history. The American Revolution was fought and won by a bunch of people who were pretty pissed off about the government of England telling them what they could and could not do.
One of the things the framers wanted to do was to prohibit the police from searching a person's home whenever they felt like it. The result was the 4th Amendment to the U.S. Constitution. That amendment prohibits general warrants and requires that to get a search warrant police have to apply to neutral magistrate (judge) and demonstrate that the search is not unreasonable. The Amendment states that "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." At the core of the 4th amendment is the notion that a person should be able to retreat into his own home without fear of unreasonable governmental intrusion. Sounds pretty straightforward, right? Well courts have been squabbling for over 200 years as to what it means. Add to this, that states have their own constitutions that deal with search and seizure and you have more interpretations of search and seizure law than you can imagine. Remember, this started in 1791. One of the questions, then, is whether or not the search in question was "reasonable?"
How did this come to pass, all of this so-called judicial interpretation? There are too many reasons to list and I don't know them all anyway. One reason, however, has to do with technology. All kinds of things that we take for granted today were not even pipe dreams in the late 1700's, e.g., airplanes, telephones, GPS devices, computers and thermal imaging devices. Okay, not thermal imaging devices-I just wanted to see if you were paying attention.
A few examples if you please. I bet you think when you are talking on the phone that your conversations are private. Well, they are, right up until the time an eavesdropping warrant goes into effect which authorizes the police to "seize" certain conversations. If the police can convince a judge that your phone is being used to conduct criminal business your conversations are going to be seized. Those of you who saw the film "Goodfellas" may remember in the beginning of the film the narrator tells us that "Pauly never talked on the phone." Pauly had a reason for this.
For those of you who grow certain things in your backyard and build a 10 foot fence around the yard to keep prying eyes at bay, I have 2 words for you. Airplanes. Overflights.
For those of us that love to tell the world everything that is going on in our lives on the internet I have a question for you? Do you really, really think all those things you say are private? You cannot be serious if you answered yes to that question. You may not care that what you say is not private. It is just a good idea to realize that it is not.
There is a statewide organization of criminal defense lawyers who have a listserve for members where they can discuss issues, vent or otherwise communicate with other members. Despite repeated warnngs that the listserve was not a "secure environment" lawyers, being what they are, like to shoot their mouths off. I am one so I can say that stuff. To make a long story short, one of the members was arrested and the US Attorney's Office became very interested in some of the things he said on the listserve. Once these items went into cyberspace they were not private.
I could go on about GPS and thermal imaging devices but I think you get the point. Yes, there are certain laws in place to protect us from governmental intrusion. Just be sure that you understand there are exceptions and the the question that looms is: Is there a reasonable expectation of privacy.
As Michael Conrad used to say at the end of roll call on Hill Street Blues - Be careful out there.
This should not come as any great shock to students of history. The American Revolution was fought and won by a bunch of people who were pretty pissed off about the government of England telling them what they could and could not do.
One of the things the framers wanted to do was to prohibit the police from searching a person's home whenever they felt like it. The result was the 4th Amendment to the U.S. Constitution. That amendment prohibits general warrants and requires that to get a search warrant police have to apply to neutral magistrate (judge) and demonstrate that the search is not unreasonable. The Amendment states that "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." At the core of the 4th amendment is the notion that a person should be able to retreat into his own home without fear of unreasonable governmental intrusion. Sounds pretty straightforward, right? Well courts have been squabbling for over 200 years as to what it means. Add to this, that states have their own constitutions that deal with search and seizure and you have more interpretations of search and seizure law than you can imagine. Remember, this started in 1791. One of the questions, then, is whether or not the search in question was "reasonable?"
How did this come to pass, all of this so-called judicial interpretation? There are too many reasons to list and I don't know them all anyway. One reason, however, has to do with technology. All kinds of things that we take for granted today were not even pipe dreams in the late 1700's, e.g., airplanes, telephones, GPS devices, computers and thermal imaging devices. Okay, not thermal imaging devices-I just wanted to see if you were paying attention.
A few examples if you please. I bet you think when you are talking on the phone that your conversations are private. Well, they are, right up until the time an eavesdropping warrant goes into effect which authorizes the police to "seize" certain conversations. If the police can convince a judge that your phone is being used to conduct criminal business your conversations are going to be seized. Those of you who saw the film "Goodfellas" may remember in the beginning of the film the narrator tells us that "Pauly never talked on the phone." Pauly had a reason for this.
For those of you who grow certain things in your backyard and build a 10 foot fence around the yard to keep prying eyes at bay, I have 2 words for you. Airplanes. Overflights.
For those of us that love to tell the world everything that is going on in our lives on the internet I have a question for you? Do you really, really think all those things you say are private? You cannot be serious if you answered yes to that question. You may not care that what you say is not private. It is just a good idea to realize that it is not.
There is a statewide organization of criminal defense lawyers who have a listserve for members where they can discuss issues, vent or otherwise communicate with other members. Despite repeated warnngs that the listserve was not a "secure environment" lawyers, being what they are, like to shoot their mouths off. I am one so I can say that stuff. To make a long story short, one of the members was arrested and the US Attorney's Office became very interested in some of the things he said on the listserve. Once these items went into cyberspace they were not private.
I could go on about GPS and thermal imaging devices but I think you get the point. Yes, there are certain laws in place to protect us from governmental intrusion. Just be sure that you understand there are exceptions and the the question that looms is: Is there a reasonable expectation of privacy.
As Michael Conrad used to say at the end of roll call on Hill Street Blues - Be careful out there.
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