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S.Ct. Discusses Unconstitutional Tactics Used by Law Enforcement

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  • Legalbear
    Justice Douglas lets us in on a little secret in his concurring opinion in . Gelbard v. United States, 1972.SCT.42407 ΒΆ 57; 408 U.S.
    Message 1 of 2 , Jan 7, 2011
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      Justice Douglas lets us in on a little secret in his concurring opinion in . Gelbard v. United States, 1972.SCT.42407 <http://www.versuslaw.com>¶ 57; 408 U.S. 41 (1972)

       

      [57]        A contrary judgment today would cripple enforcement of the Fourth Amendment. For, if these movants, who the Solicitor General concedes are not the prosecutors' targets, were required to submit to interrogation, then they (unlike prospective defendants) would have no further opportunity to vindicate their injuries. More generally, because surveillances are often "directed primarily to the collecting and maintaining of intelligence with respect to subversive forces, and are not an attempt to gather evidence for specific criminal prosecutions," United States v. United States District Court, 407 U.S. 297, 318-319, the normal exclusionary threat of Weeks v. United States, 232 U.S. 383, would be sharply attenuated and intelligence centers would be loosed from virtually every deterrent against abuse.*fn4 Furthermore, evenwhere the "uninvited ear" is used to obtain criminal convictions, rather than for domestic spying, a rule different from our result today would supply police with an added incentive to record the conversations of suspected co-conspirators in order to marshal evidence against alleged ringleaders. We are told that "police are often tempted to make illegal searches during the investigations of a large conspiracy. Once the police have established that several individuals are involved, they may deem it worthwhile to violate the constitutional rights of one member of the conspiracy (particularly a minor member) in order to obtain evidence for use against others." White & Greenspan, Standing to Object to Search and Seizure, 118 U. Pa. L. Rev. 333, 351 (1970) (footnotes omitted). Because defendants are normally denied "standing" to suppress evidence procured as a result of invasions of others' privacy, today's remedy is necessary to help neutralize the prosecutorial reward of such tactics.

       

      [58]        Today's remedy assumes an added and critical measure of importance for, due to the clandestine nature of electronic eavesdropping, other inhibitions on officers' abuse, such as the threat of damage actions, reform through the political process, and adverse publicity, will be of little avail in guarding privacy.

       

      [59]        Moreover, when a court assists the Government in extracting fruits from the victims of its lawless searches it degrades the integrity of the judicial system. For "nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence." Mapp v. Ohio, 367 U.S. 643, 659. For this reason, our decisions have embraced the view that "the tendency of those who execute the criminal laws of the country to obtain conviction by means of unlawful seizures and enforced confessions . . . should find no sanction in the judgments of the courts, which are charged at all times with support of the Constitution." Weeks v. United States, 232 U.S. 383, 392. As mentioned earlier, this principle was at the heart of the Silverthorne decision. Later in his dissent in Olmstead v. United States, 277 U.S., at 470, a case in which federal wiretappers had violated an Oregon law, Mr. Justice Holmes, citing Silverthorne, thought that both the officers and the court were honor bound to observe the state law: "If the existing code does not permit district attorneys to have a hand in such dirty business it does not permit the judge to allow such iniquities to succeed." In the same case, Justice Brandeis, who was then alone in his view that wiretapping was a search within the meaning of the Fourth Amendment, phrased it this way: "In a government of laws, existence of the government will be imperilled if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy." Id., at 485.

       

      [60]        In an entrapment case, Mr. Justice Frankfurter, with whom Justices Harlan, BRENNAN, and I joined, thought that "the federal courts have an obligation to set their face against enforcement of the law by lawless means" because "public confidence in the fair and honorable administration of justice, upon which ultimately depends the rule of law; is the transcending value at stake." Sherman v. United States, 356 U.S. 369, 380 (concurring in result); see also his opinion for the Court in Nardone v. United States, 308 U.S. 338, 340-341. In a Self-Incrimination Clause decision, MR. JUSTICE BRENNAN (joined by MR. JUSTICE MARSHALL and myself) used fewer words: "it is monstrous that courts should aid or abet the lawbreaking police officer." Harris v. New York, 401 U.S. 222, 232 (dissenting opinion).

       

       

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    • Frog Farmer
      ... And the only reason they ended up discussing it was because somebody went all the way to the Supreme Court. They made it past the Ashwander Rules and
      Message 2 of 2 , Jan 8, 2011
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        Legalbear wrote:

        > Subject: [tips_and_tricks] S.Ct. Discusses Unconstitutional Tactics
        > Used by Law Enforcement

        And the only reason they ended up discussing it was because somebody
        went all the way to the Supreme Court. They made it past the Ashwander
        Rules and every other impediment thrown in their way. They suffered the
        appeals process. That's the whole thing about making it to the Supreme
        Court. Not every case can qualify. It hardly ever happens by accident.

        > [59] Moreover, when a court assists the Government in
        > extracting fruits from the victims of its lawless searches it degrades
        > the integrity of the judicial system. For "nothing can destroy a
        > government more quickly than its failure to observe its own laws, or
        > worse, its disregard of the charter of its own existence." Mapp v.
        > Ohio, 367 U.S. 643, 659. For this reason, our decisions have embraced
        > the view that "the tendency of those who execute the criminal laws of
        > the country to obtain conviction by means of unlawful seizures and
        > enforced confessions . . . should find no sanction in the judgments of
        > the courts, which are charged at all times with support of the
        > Constitution." Weeks v. United States, 232 U.S. 383, 392. As mentioned
        > earlier, this principle was at the heart of the Silverthorne decision.
        > Later in his dissent in Olmstead v. United States, 277 U.S., at 470, a
        > case in which federal wiretappers had violated an Oregon law, Mr.
        > Justice Holmes, citing Silverthorne, thought that both the officers
        > and the court were honor bound to observe the state law: "If the
        > existing code does not permit district attorneys to have a hand in
        > such dirty business it does not permit the judge to allow such
        > iniquities to succeed." In the same case, Justice Brandeis, who was
        > then alone in his view that wiretapping was a search within the
        > meaning of the Fourth Amendment, phrased it this way: "In a government
        > of laws, existence of the government will be imperilled if it fails to
        > observe the law scrupulously. Our Government is the potent, the
        > omnipresent teacher. For good or for ill, it teaches the whole people
        > by its example. Crime is contagious. If the Government becomes a
        > lawbreaker, it breeds contempt for law; it invites every man to become
        > a law unto himself; it invites anarchy." Id., at 485.

        Here it is made clear that the laws and constitutions overrule
        paycheck-anticipator whim. So why are things so messed up in general?
        Because most "accused" people do not envision going to the Supreme Court
        while in the IMOC (Initial Moment Of Confrontation). Often getting the
        pizza home in consumable condition trumps the exercise of rights that
        are more and more unnecessary for life in the Matrix. And nobody wants
        to be TASED either. The voice of the masses is heard in the choices
        they make.

        > In an entrapment case, Mr. Justice Frankfurter, with whom
        > Justices Harlan, BRENNAN, and I joined, thought that "the federal
        > courts have an obligation to set their face against enforcement of the
        > law by lawless means" because "public confidence in the fair and
        > honorable administration of justice, upon which ultimately depends the
        > rule of law; is the transcending value at stake." Sherman v. United
        > States, 356 U.S. 369, 380 (concurring in result); see also his opinion
        > for the Court in Nardone v. United States, 308 U.S. 338, 340-341. In a
        > Self-Incrimination Clause decision, MR. JUSTICE BRENNAN (joined by MR.
        > JUSTICE MARSHALL and myself) used fewer words: "it is monstrous that
        > courts should aid or abet the lawbreaking police officer." Harris v.
        > New York, 401 U.S. 222, 232 (dissenting opinion).

        Hey, how about the lawbreaking WOULD-BE POLICE OFFICER? The other night
        on the bus there was an assault. People called out to call the cops on
        a cell phone. So I loudly announced, "Okay but we'll have to overlook
        the cop's failure to have his oath and bond in order, just this one
        time. Does anyone here besides me care that cops are actually not in
        compliance with the laws that make them cops and give them any more
        authority than we have?" The gist of the replies was that the cops were
        incompetent and useless and that the bus crowd would handle the
        situation. Nobody replied directly to my question. The driver of the
        bus was not competent in English enough to take charge of the situation.
        His English was limited to a few script lines repeated every trip.
        Eventually, things quieted down and the trip proceeded. Nobody did
        anything about the assault, even the victim, even the victim's friends,
        and the criminal assailant went free.

        I was too far forward in my seat and was an incompetent witness and went
        by my hearing and hearsay of all the others as things transpired.

        Court citations that make it seem that rights and laws are still
        respected are very numerous and collectible, and very good for people to
        read and know about. But people do not use them in the IMOC where they
        carry the most weight. The IMOC should lead to a pretty clear exposition
        of the accused's case, while not waiving any rights for any cause or
        reason, and should not skip over crucial administrative and procedural
        matters first being "standing" to even SPEAK in MY case! I'm no fun and
        do not make many friends in IMOCs. But I do try to be entertaining and
        interesting and compassionate and educational with this younger
        generation of brainwashed frn-slaves the corporations deem expendable.

        A court case can be won by having the record show a series of rights
        violations of the accused. The opportunity to make record begins in the
        IMOC. I personally have my own agenda to fulfill in any IMOC I may find
        myself in, no matter what the intentions or claims of the opposing side.
        I have my eye on the Supreme Court even then.

        One case I was in, I said to the prosecutor, "I hope that when we reach
        Washington D.C. the cherry trees are in bloom."

        With the collapse of everything there will be lots more IMOCs for us all
        as there will be more attempts to extract revenue for bankrupt
        organizations. One of the first things in this vein is traffic cameras.
        People who fight for their rights can win, while those willing to waive
        them will lose.

        Regards,

        FF
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