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9/22/2017 12:11:25 AM
Posted: 9/11/2005 5:09:05 AM EDT
What was the result of the citizen who had the nerve to meet the police who came to forcibly evacuate him. I saw the TV footage where the SWAT team surrounded his house because he told them he was OK, didn't want to leave his house, and was protecting it as allowed by the 4th amendment by using the tools as allowed by the 2nd amendment (a gun in one hand, a knife in the other). For this he was arrested, handcuffed, labeled deranged and led away to who knows what.

A SEARCH is by definition an invasion of privacy. The fourth amendment says that all searches are to be conducted under authoruity of a warrant. Warrants can be issued to search premises (dwellings), vehicles, or persons. The 4th amendment also states that propable cause should form the basis of warrants, supported by oath or affirmation. No-knock warrants can be issued if exigent circumstances) evidence can be easily destroyed or flushed, a hostage situation exists, and the case involves explosives, emergencies, danger to officers, or unusual circumstances. All warrants, not just no-knock warrants, authorize the use of force to enter a dwelling if police are denied entrance or no one is there to admit them.

A warrant must include a street address and description of the location. A warrant for one side of a duplex does not authorize the search of the other, the same is true for apartments. A warrant must describe s fully as possible all the things to be looked for in connection with a crime that has been committed or is about to be committed. The description must be specific. Finally, a valid warrant must be signed by a judge. The most important thing about searches is that their scope must be narrow. Generally, exploratory searches are unconstitutional.

We also have SEIZURE which by definition is the deprivation of liberty, or the enjoyment in exercising dominion or control over a thing, be it property or persons. Police can temporarily seize private property for about 14 days, and usually hold it indefinitely if it is material evidence in a criminal case.

The EXCLUSIONARY RULE provide protection against unreasonable seizures (evidence illegally obtained cannot be legally admitteed).

EXCEPTIONS to the Warrant and Exclusionary rules:

Automobile search exception

Border search exception

Chimel Rule A warrantless search is allowed if incidental to a lawful arrest.

Consent Search exception

Crime scene Search exception

Emergency Situation Exception -In situations with probable cause and no time to secure a warrant.

Good Faith Doctrine- Look out for this one!!! The doctrine holds that if police are unaware they are violating someone's 4th amendment rights, the evidence can be admitted anyway.

Inevitable Discovery Doctrine

Inventory Search Exception

Moving Vehicle/Probable Cause Doctrine

Open Fields Doctrine

Plain View Doctrine

Private Individual Serach Exception

Stop and Frisk Rule

Student Search Exception

AS I AM NOT A LAWYER OR WITH LEGAL TRAINING, I cannot explain or suggest anything done to or about the (so-called deranged person) was illegal, this is just food for thought. Maybe some of our trained members can weigh in on this.

Internet Resources for those who want to read the full text of those comments noted above.
About.com Civil Liberties Guide to Search and Seizure
Nolo's Understanding Search and Seizure Law
Link Posted: 9/11/2005 5:14:05 AM EDT
You forgot that during martial law , they can do whatever they want.
Link Posted: 9/11/2005 5:33:43 AM EDT
Except nobody declared martial law in NOLA.

I just love Google:

Martial law occurs when the military assumes police powers because local authorities and courts aren't functioning. Although the president usually imposes martial law, federal regulation allows for a "local commander" to do so "on the spot, if the circumstances demand immediate action." Federal armed forces are expected to relinquish these powers as soon as the local government is once again operable. During martial law, the military may arrest and try civilians, seize private property, and institute curfews, among other emergency powers.

In practice, however, martial law has been all but barred since the late 19th century. During the Civil War, President Lincoln suspended habeas corpus and set up military courts in several states in the South and Midwest. Many at the time felt that Lincoln had superseded his authority, and in 1878 Congress passed the Posse Comitatus Act, which forbids the military from performing civilian law enforcement without congressional approval.

The Posse Comitatus Act effectively limited the president's power to declare martial law, but it did not entirely end it. After the bombing of Pearl Harbor in 1941, the governor of Hawaii called for martial law. President Roosevelt approved the motion, and the islands remained under military authority until October of 1944.

Additionally, governors can still request that the president immediately dispatch federal troops to assist police during emergencies. This happened during two notable instances of rioting in recent history—at the 1968 Democratic Convention in Chicago and after the verdict was handed down in the Rodney King trial in Los Angeles in 1992. Neither instance constituted martial law (or violated Posse Comitatus) since federal troops were supporting and not supplanting local leaders.

The Katrina relief effort includes military assistance, but it is not martial law. National Guard units are acting under the direction of governors, and federal troops are providing humanitarian relief. Neither of these violates Posse Comitatus. While martial law has not been imposed, a state of emergency has been declared in Louisiana, Mississippi, Alabama, and Florida, signaling that some civil liberties, such as the right to congregate, may be limited because of extreme conditions.
Link Posted: 9/11/2005 6:41:53 AM EDT

Originally Posted By MrClean4Hire:
You forgot that during martial law , they can do whatever they want.

Does martial law trump your constitutional rights?
Link Posted: 9/11/2005 6:45:41 AM EDT

Originally Posted By Dance:

Originally Posted By MrClean4Hire:
You forgot that during martial law , they can do whatever they want.

Does martial law trump your constitutional rights?


Watch the news and report back. It sure looks that way. Confiscating weapons and dragging you from your own home. There went your rights.
Link Posted: 9/11/2005 7:05:34 AM EDT

Originally Posted By Dance:

Originally Posted By MrClean4Hire:
You forgot that during martial law , they can do whatever they want.

Does martial law trump your constitutional rights?

We have constitutional rights as long as it is convenient. That document keeps the sheep calm during peacetime but can be suspended by the government at its will, as far as I can tell.
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