Re: Not necessarily crypto but scary anyway...

>A friend advises me that today House Bill 666 passed. This supposedly would
>allow police officers to use evidence collected illegaly if they 'believed'
>that it was collected in good faith.
>
>Any word on it?

Yes, this bill is real, and it passed the house resoundingly.  (I don't
know if the bill number is accurate.)  According to the ny times, the
republicans have been trying to pass this for a long time, and now they
control congress.

Interestingly, the ATF and IRS are specifically excluded!  The bill was
opposed by both civil liberties groups and gun nuts.  (Hope I don't offend
too many gun nuts.)  The ATF was excluded as a sop to the NRA I suppose.


During debate, Rep. John Dingell (MI) called the ATF "jackbooted American
fascists."  Way to go John!

David


+------------------------------------------------------------------------+
|David Shayer                                 dshayer@netcom.com         |
|Sentient Software / Symantec                 shayer@applelink.apple.com |
|"Shoot Newt."                                                           |
+------------------------------------------------------------------------+

With all the gafawing about the bill (666) which just flew by, and the 
"Dem's" running off about how the constitution is being dismantled, I 
thought I would cite some case law.

I direct your attention to _United States v. Leon_, 468 U.S. 897 (1984).

Justice White:

This case presents the question whether the Fourth Ammendment 
exclusionary rule should be modified so as not to bar the use in the 
prosecution's case-in-chief of evidence obtained by officers acting in 
reasonable reliance on a search warrant issued by a detached and neutral 
magistrate but ultimately found to be unsupported by probable cause.

[...]

The Fourth Amendment contains no provision expressly precluding the use 
of evidence obtained by violation if its commands, and an examination of 
its orgin and purposes makes clear that the use of fruits of a past 
unlawful search or seizure "work[s] no new Fourth Amendment wrong."  The 
wrong condemned by the Amendment is "fully accomplished" by the unlawful 
search or seizure itself, and the exclusionary rule is neither intended 
nor able to "cure the invasion of the defendant's rights which he has 
already suffered."  The rule thus operates as "a judicially created 
remedy designed to safeguard Fourth Amendment rights generally through 
its deterrant effect, rahter than a personal constitutional right of the 
person aggrieved."

[...]

First, the exclusionary rule is designed to deter police misconduct 
rather than to punish the errors of judges and magistrates.  Second, 
there exists no evidence suggesting that judges and magistrates are 
inclined to ignore or subvert the Fourth Amendment or that lawlessness 
among these actors requires application of the extreme sanction of exclusion.

[...]

[The exclusionary rule cannot be expected to deter objectively reasonable 
law enforcement activity...]

This is particularly true, we believe, when an officer acting with objective
good faith has obtained a search warrant from a judge or magistrate and acted
within its scope.  In most such cases, there is no police illegality and this
nothing to deter. It is the magistrate's responsibility to determine whether
the officer's allegations estlablish probable cause and, if so, to issue a
warrant comporting in form with the requirements of the Fourth Amendment.
In the ordinary case, an officer cannot be expected to question the
magistrate's probable-cause determination or his judgement that the form of
the warrant is technically sufficent.  "[O]nce the warrant issues, there is 
literally nothing more the policeman can do in seeking to comply with the 
law."  Penalizing the officer for the magistrate's error, rather than his 
own, cannot logically contribute to the deterrence of Fourth Amendment 
violations.

END.
++++

The bill is really just a restatement.  This has been the state of the 
law for 11 years now.

If the bill fails, the essence of the doctrine that everyone is concerned 
about stands in any event.

The question is moot.

-uni- (Dark)

--
073BB885A786F666 nemo repente fuit turpissimus - potestas scientiae in usu est
6E6D4506F6EDBC17 quaere verum ad infinitum, loquitur sub rosa    -    wichtig!

-----BEGIN PGP SIGNED MESSAGE-----

Black Unicorn <unicorn@access.digex.net> wrote:

>
> With all the gafawing about the bill (666) which just flew by, and the
> "Dem's" running off about how the constitution is being dismantled, I
> thought I would cite some case law.
>
> I direct your attention to _United States v. Leon_, 468 U.S. 897 (1984).


666 and 1984.  Talk about irony.

Let's see... Fourth Amendment:

 "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."

What part of "shall not be violated" does Justice White not get?


> Justice White:
>
> This case presents the question whether the Fourth Amendment
> exclusionary rule should be modified so as not to bar the use in the
> prosecution's case-in-chief of evidence obtained by officers acting in
> reasonable reliance on a search warrant issued by a detached and neutral
> magistrate but ultimately found to be unsupported by probable cause.
>
> [...]
>
> The Fourth Amendment contains no provision expressly precluding the use
> of evidence obtained by violation if its commands, and an examination of
> its orgin and purposes makes clear that the use of fruits of a past
> unlawful search or seizure "work[s] no new Fourth Amendment wrong."  The
> wrong condemned by the Amendment is "fully accomplished" by the unlawful
> search or seizure itself, and the exclusionary rule is neither intended
> nor able to "cure the invasion of the defendant's rights which he has
> already suffered."  The rule thus operates as "a judicially created
> remedy designed to safeguard Fourth Amendment rights generally through
> its deterrant effect, rahter than a personal constitutional right of the
> person aggrieved."
>


Obscured in White's casuistry is the fact that if evidence from
improper searches can be admitted, then the Fourth Amendment itself
is largely made "moot."  White's "this shit don't stink" sophism
notwithstanding.


>  ... Second,there exists no evidence suggesting that judges and
>  magistrates are inclined to ignore or subvert the Fourth Amendment
>  or that lawlessness among these actors requires application of the
>  extreme sanction of exclusion.


Uh Huh...


[ The rest of Justice White's police state apologia omitted.]


> END.
> ++++


> The bill is really just a restatement.  This has been the state of the
> law for 11 years now.
>
> If the bill fails, the essence of the doctrine that everyone is concerned
> about stands in any event.
>
> The question is moot.



This is actually one of the arguments that some proponents of the
bill were using during the House Floor Debate that I was watching on
CSPAN.  If this were the case, then I wondered: Why were they so
intent to pass the bill in the first place??

I don't think that the codification of this earlier Fourth Amendment 
evisceration in federal statute is something I would characterize as 
moot.  I would regard it as a pretty sickening development even if it 
only added insult to injury.  Unfortunately, I doubt that the 666 
seal of approval will fail to further contribute to the ongoing 
destruction of our rights to privacy and due process in this country.



- -Michael




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I've got a solution that everyone should love:

Let's go ahead and allow illegally obtained evidence - but let's
make it a capital offense for a law-enforcement officer to 
knowingly violate the 4th amendment.  

Strong 4th amendment protection and another wonderful death
penalty all in one!

Brad D.

On Fri, 10 Feb 1995, Black Unicorn wrote:

> 
> 
> With all the gafawing about the bill (666) which just flew by, and the 
> "Dem's" running off about how the constitution is being dismantled, I 
> thought I would cite some case law.
> 
> I direct your attention to _United States v. Leon_, 468 U.S. 897 (1984).
> 
> Justice White:
> 
> This case presents the question whether the Fourth Ammendment 
> exclusionary rule should be modified so as not to bar the use in the 
> prosecution's case-in-chief of evidence obtained by officers acting in 
> reasonable reliance on a search warrant issued by a detached and neutral 
> magistrate but ultimately found to be unsupported by probable cause.
> 
> [...]
> 
> The Fourth Amendment contains no provision expressly precluding the use 
> of evidence obtained by violation if its commands, and an examination of 
> its orgin and purposes makes clear that the use of fruits of a past 
> unlawful search or seizure "work[s] no new Fourth Amendment wrong."  The 
> wrong condemned by the Amendment is "fully accomplished" by the unlawful 
> search or seizure itself, and the exclusionary rule is neither intended 
> nor able to "cure the invasion of the defendant's rights which he has 
> already suffered."  The rule thus operates as "a judicially created 
> remedy designed to safeguard Fourth Amendment rights generally through 
> its deterrant effect, rahter than a personal constitutional right of the 
> person aggrieved."
> 
> [...]
> 
> First, the exclusionary rule is designed to deter police misconduct 
> rather than to punish the errors of judges and magistrates.  Second, 
> there exists no evidence suggesting that judges and magistrates are 
> inclined to ignore or subvert the Fourth Amendment or that lawlessness 
> among these actors requires application of the extreme sanction of exclusion.
> 
> [...]
> 
> [The exclusionary rule cannot be expected to deter objectively reasonable 
> law enforcement activity...]
> 
> This is particularly true, we believe, when an officer acting with objective
> good faith has obtained a search warrant from a judge or magistrate and acted
> within its scope.  In most such cases, there is no police illegality and this
> nothing to deter. It is the magistrate's responsibility to determine whether
> the officer's allegations estlablish probable cause and, if so, to issue a
> warrant comporting in form with the requirements of the Fourth Amendment.
> In the ordinary case, an officer cannot be expected to question the
> magistrate's probable-cause determination or his judgement that the form of
> the warrant is technically sufficent.  "[O]nce the warrant issues, there is 
> literally nothing more the policeman can do in seeking to comply with the 
> law."  Penalizing the officer for the magistrate's error, rather than his 
> own, cannot logically contribute to the deterrence of Fourth Amendment 
> violations.
> 
> END.
> ++++
> 
> The bill is really just a restatement.  This has been the state of the 
> law for 11 years now.
> 
> If the bill fails, the essence of the doctrine that everyone is concerned 
> about stands in any event.
> 
> The question is moot.
> 
> -uni- (Dark)
> 
> --
> 073BB885A786F666 nemo repente fuit turpissimus - potestas scientiae in usu est
> 6E6D4506F6EDBC17 quaere verum ad infinitum, loquitur sub rosa    -    wichtig!
> 
>

Any punishment on the books for politce who knowingly violate the law seems
pointless, since they can technically be prosecuted for violating civil
rights anyway.  As it is, juries tend to believe police testimony no matter
what side they are on (prosecution or defense).

It's rare that police are prosecuted for brutaliy cases, and corruption
trials fizzle out because of the "blue wall" effect.

I was under the  impression that the House bill would change the status 
quo in one important respect: under Leon and similar cases, the "good 
faith" exception only applies when a judge or magistrate has issued a 
warrant which turns out not to be valid.  Under the House bill, this 
erosion of the exclusionary rule is extended to warrantless searches 
(presumably including electronic searches) made in "good faith".  Since 
knowledge of what the Constitution requires can destroy good faith, the 
changes likely to be made in police procedure manuals and curricula are 
left as an exercise for the reader.

OBCrypto: Buy shares in commercial crypto suppliers now.  Demand should 
be going up.

A.Michael Froomkin          | +1 (305) 284-4285; +1 (305) 284-6506 (fax)
U.Miami Law School          | MFROOMKI@UMIAMI.IR.MIAMI.EDU
PO Box 248087               | 
Coral Gables, FL 33146 USA  | It's barely warm here.

On Fri, 10 Feb 1995, Black Unicorn wrote:

[about HR 666]

> The bill is really just a restatement.  This has been the state of the 
> law for 11 years now.

Right - it is time to change the law.  HR 666 won't help in that direction.


-Thomas