Comments on: Who is the King?: Sowing the Seeds of Disrespect for the Law http://fresnocriminaldefense.com/police-state/who-is-the-king-sowing-the-seeds-of-disrespect-for-the-law/ The Law Office of Fresno Criminal Defense Lawyer Rick Horowitz Mon, 02 Jan 2012 19:38:15 +0000 hourly 1 http://wordpress.org/?v=3.3.1 By: Jo Nathan http://fresnocriminaldefense.com/police-state/who-is-the-king-sowing-the-seeds-of-disrespect-for-the-law/comment-page-1/#comment-38 Jo Nathan Wed, 11 Feb 2009 01:55:45 +0000 http://fresnocriminaldefense.com/?p=252#comment-38 RickH - you are so right: "well, yeah, the Constitution says government can’t do this, but doesn’t say that there should be any penalty, so we shouldn’t impose one in this case because we don’t like the result that would flow from that.” But that is why the exclusionary rule was created in Weeks; if there is no penalty, there is no Fourth Amendment. And the way it is now, penalties via exclusion only crop up in the case of criminal prosecutions. Who can you call when your Fourth Amendment rights are being violated and you're not charged? The Police? I think not; they spend most of their time figuring out ways to sidestep the Fourth. Bivens actions are rarely possible when illegal surveillance is performed, as one can't get evidence. The idea that civil suits provide remedies is a SCOTUS figment. RickH – you are so right: “well, yeah, the Constitution says government can’t do this, but doesn’t say that there should be any penalty, so we shouldn’t impose one in this case because we don’t like the result that would flow from that.”

But that is why the exclusionary rule was created in Weeks; if there is no penalty, there is no Fourth Amendment. And the way it is now, penalties via exclusion only crop up in the case of criminal prosecutions. Who can you call when your Fourth Amendment rights are being violated and you’re not charged? The Police? I think not; they spend most of their time figuring out ways to sidestep the Fourth. Bivens actions are rarely possible when illegal surveillance is performed, as one can’t get evidence. The idea that civil suits provide remedies is a SCOTUS figment.

]]> By: RickH http://fresnocriminaldefense.com/police-state/who-is-the-king-sowing-the-seeds-of-disrespect-for-the-law/comment-page-1/#comment-31 RickH Sun, 01 Feb 2009 14:54:15 +0000 http://fresnocriminaldefense.com/?p=252#comment-31 I'm with you on that. It blows my mind that the government thinks by carving itself up into little chunks and letting non-law-enforcement chunks violate the Constitution, they're honoring the Constitution. The Constitution is a limitation on government. Period. Doesn't matter which part of the government is doing the violating, the exclusionary rule should apply. But even better are the people, including courts, that seem to argue that "well, yeah, the Constitution says government can't do this, but doesn't say that there should be any penalty, so we shouldn't impose one in this case because we don't like the result that would flow from that." I’m with you on that. It blows my mind that the government thinks by carving itself up into little chunks and letting non-law-enforcement chunks violate the Constitution, they’re honoring the Constitution.

The Constitution is a limitation on government. Period. Doesn’t matter which part of the government is doing the violating, the exclusionary rule should apply.

But even better are the people, including courts, that seem to argue that “well, yeah, the Constitution says government can’t do this, but doesn’t say that there should be any penalty, so we shouldn’t impose one in this case because we don’t like the result that would flow from that.”

]]> By: Jo Nathan http://fresnocriminaldefense.com/police-state/who-is-the-king-sowing-the-seeds-of-disrespect-for-the-law/comment-page-1/#comment-30 Jo Nathan Sun, 01 Feb 2009 08:44:13 +0000 http://fresnocriminaldefense.com/?p=252#comment-30 I've read a little about the Herring case, and the exclusionary rule. My take on it is that SCOTUS has blinders on, focusing on deterring police violations of fourth amendment rights. Why should not the exclusionary rule be invoked to simply protect fourth amendment rights, period? That is, whether it is the police, the clerk, or the judge; shouldn't there be a deterrent regardless of the proximate cause of the invalid search and/or seizure? Am I missing something? I’ve read a little about the Herring case, and the exclusionary rule. My take on it is that SCOTUS has blinders on, focusing on deterring police violations of fourth amendment rights. Why should not the exclusionary rule be invoked to simply protect fourth amendment rights, period? That is, whether it is the police, the clerk, or the judge; shouldn’t there be a deterrent regardless of the proximate cause of the invalid search and/or seizure? Am I missing something?

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