Wednesday, January 14, 2009

There Is A Real Slippery Slope

Today the US Supreme Court severely damaged the Fourth Amendment to the US Constitution.

At least according to one lawyer who worked on the case.

That case is Herring v US [it got lost, so Wayback Machine Version], which involved evidence seized in a flawed manner that would have been unlawful under the current understanding of the Fourth Amendment.

The law had been clear. When erroneous information is provided by a law enforcement employee to a police officer and that officer relies on it to search a citizen, any evidence of a crime recovered in that search could not be used to prosecute that citizen.

It was a concept that told police that the ancient ways of kings in the old world was history. There must be valid probable cause prior to any search. That 4th Amendment law is no longer the law.

In Herring, a 5-4 decision, the conservative justices held that even if police officers give other police officers erroneous information, and they use that to search a citizen, if they find incriminating evidence in the otherwise illegal search, now it can be used in court against that citizen in a criminal prosecution.

Yes, the Supremes held that if a police officer is given bad information, and in reliance on it he searches a citizen in violation of the 4th Amendment, the evidence can still be used to put that citizen in jail.

The Supremes tell us now that the fruit of the poison tree is no longer poison. Go ahead Eve, take a bite, they urge. But based upon thousands of years of history of despots, we know the fruit will be both bitter and poisonous.

The fundamental reason the conservative members of the Supremes don't get it is they think "I am government, I am a good guy, so government is good". Our forefathers had a different take on it "Power corrupts, and absolute power corrupts absolutely" was their foundation. The entire 4th Amendment theory is not to aid people in hiding crimes, but to keep government from corruption so it cannot harm citizens who do not agree with current government policy and who therefore speak out about it.

But after Herring, bad cops can now conveniently have other bad cops give them information about someone (even untrue information), even after planting evidence, and then arrest their local "enemies".

That is the classical pattern despot regimes take. The "law" is used against their enemies, but they become immune to the law. And that is the direction the conservatives on the court have now taken the United States.

It is a very bad direction, because America is in the other direction. Where we are going with this is clear, the America Simon and Garfunkel went to look for is in the rear view mirror and fading from view.


  1. Imagine a whistle blower finds the DOJ has been infested with racists and criminals. He then leaks emails to the press.

    Insiders within the DOJ contact two cops who are told to plant evidence during a search, after one cop gives the other wrong information about the whistle blower. Under Herring the cop can search and it will be legal.

    Once the whistle blower is in jail, the story in the press can now be about the bad criminal whistle blower.

    This went on for years and years in Los Angeles, until a federal judge held the LAPD was a criminal enterprise under RICO statutes. The federal government took control to clean it up.

  2. There is always a tension between oppressive regimes and the 4th Amendment.

    Group Sues Over Illegal Search and Seizure

  3. One of a thousand examples show that cops habitually lie and deceive to get around the law.