Saturday, October 27, 2007

more from mukasey's october 24, 2007 answers

i thought it might be useful
to point out that a large por-
tion of what mukasey writes
about warrantless searches in-
volves a few narrow exceptions to
the general fourth amendment rule.

these "no warrant" exceptions apply
in narrow, emergency-type situations.
moreover, some of mukasey's statements
only apply to persons who are not u.s.
citizens, or are not on u.s. soil at
the time of the surveillance.

let's take a look:

. . .Searches incident to arrest, border searches, and vehicle searches, to name a few examples, may be conducted without a warrant. Warrantless searches of this sort must still, of course, comply with the Fourth Amendment's reasonableness requirement. The federal courts have treated warrantless searches to obtain foreign intelligence analogously, holding that the Constitution does not require a warrant, although it does require that the searches be reasonable. . .

. . .This is not to say the govenunent may conduct such surveillance without regard for the privacy interests at stake. Warrantless surveillance directed at US individuals within the United States presents a more complex question, and understandably raises much greater concern, than surveillance directed at foreigners overseas. Indeed, the Foreign Intelligence Surveillance Act ("FISA") and the Protect America Act recognize this distinction and provide a greater role for the Foreign Intelligence Surveillance Court in reviewing and approving surveillance directed at people within the United States than people located abroad. . .

so -- to be clear -- when an officer is
arresting a person, s/he has the right
to quickly search that suspect, to
protect him/herself against any con-
cealed weaponry. . . but that search
must be brief, focused and specific to
be considered reasonable.

similarly, no warrant is needed when
a "terry" stop occurs -- based solely
on articuable suspicion of criminal activity
(as opposed to full-blown probable cause).
but the stop must be minimally intrusive,
must be brief, and it must end when the
person stopped decides to walk away.

then, the officer must either let
the encounter end consensually, or
decide that s/he has full probable
cause to arrest. . .

note that what occured, in many cases,
over the last six years, involved u.s. citizens
being surveilled, without a warrant, without
probable cause, and without articuable suspicion.

that was presumptively unreasonable,
especially so, where a warrant could have
been obtained easily (assuming it was a legit
operation), by simply making a showing to
the appropriate tribunal. . . when the
government failed to do so, the general
fourth amendment rule was violated. . .

and that is what this is all about.

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