[freejazz]

Your argument is a bit disingenuous because it's not applicable in situation where there is clear law clarifying that something can't be done.

You're pretending that cops are using this in situations where it's known that a warrant is needed, as opposed to it being an exception to "fruit of the poisonous tree" doctrine when new caselaw is being made.

> Acting in good faith would be getting a warrant regardless

That's not what "good faith" means, that's just something entirely made up by you. From a reasonable perspective that could be described as foolish and a waste of time and the public's resources.

> It encourages the police to push the boundaries of legal behavior, because they still get to keep the evidence even if they are wrong and have committed an illegal search.

There's a constant tension between technology, crime and the police that's reflected in the history of 4th amendment jurisprudence and it's not at all like what you describe. The criminals are pushing the boundaries to which the police must catch up, and the law must determine what is fair as society changes over time. I'm not particularly pro cop, but you don't seem to be reasonable about any of this.

[everforward]

> You're pretending that cops are using this in situations where it's known that a warrant is needed, as opposed to it being an exception to "fruit of the poisonous tree" doctrine when new caselaw is being made.

The ACLU has a decent article about it [1].

Beyond that, there is a substantial power imbalance between law enforcement and private citizens implying that private citizens should be favored by the law where possible to even that out (this is well upheld in case law and documents from the founding of the country). As a private citizen, if you want to do something but are not sure about its legality, do you a) yell "YOLO" and go ahead and do it, b) consult a lawyer, or c) just not do it at all? I believe law enforcement should be held to that same bar.

> That's not what "good faith" means, that's just something entirely made up by you. From a reasonable perspective that could be described as foolish and a waste of time and the public's resources.

"Good faith" is at odds with recklessness and negligence; an action cannot be made both recklessly or negligently and in good faith (supported by majority opinion in Leon v United States, which established the good faith exception). I cannot see a way in which taking an action of unknown legality, while possessing both the time and means to take an alternate action of known legality, is not acting with reckless disregard or negligence to the rule of law and thus incompatible with good faith.

From Leon v United States: "The deference accorded to a magistrate's finding of probable cause for the issuance of a warrant does not preclude inquiry into the knowing or reckless falsity of the affidavit on which that determination was based, and the courts must also insist that the magistrate purport to perform his neutral and detached function and not serve merely as a rubber stamp for the police."

> There's a constant tension between technology, crime and the police that's reflected in the history of 4th amendment jurisprudence and it's not at all like what you describe. The criminals are pushing the boundaries to which the police must catch up, and the law must determine what is fair as society changes over time.

I would genuinely encourage you to review the history of 4th Amendment jurisprudence. It has been continually weakened to the point that only the most flagrant and loudly-announced violations are found unconstitutional, and even then the punishments are virtually non-existent.

Again, the ACLU has a very informative document on it literally called "The Crisis in Fourth Amendment Jurisprudence" [2]. Criminals aren't doing anything particularly new; stashing files somewhere and even encrypting them isn't anything new. Encrypting something in a way that was virtually undecipherable was possible even when the 4th Amendment was written. These are not novel criminal techniques, but the broad liberties given to police with regards to the 4th very much are.

You are welcome to consider me unreasonable. I think there is a fundamental gap in core beliefs causing that. I do not believe criminals are doing anything categorically new, nor that crime is suddenly worse, nor that crime is currently so bad that it demands an exceptional response. Under that set of beliefs, I think opposition to exceptional police powers is reasonable. You seem to believe the opposite, and I can see how my opposition seems unreasonable. I would say that you have fallen victim to unfounded propaganda, and I presume you have a similar accusation to level at me.

Regardless, I do appreciate you engaging in good faith and I wish you weren't ratio-ed on your comment. I do think you have brought interesting points to the discussion.

1. https://www.aclu.org/news/national-security/polices-get-out-...

2. https://www.aclu.org/publications/crisis-fourth-amendment-ju...

[trod123]

I'm not OP, but I consider your response quite reasonable.

I found your reply informative and specific, though I took a more fundamental approach in my response to OP, focusing on components required for a "rule of law" compared to a "rule by law" (kafka/soviet style).

I've done a lot of historic reading, and any time those components fail, violence increases proportionally to the lack of agency for non-violent resolution available.

It may just be speculation on my part, but given the repeated cycle, and detailed accounts, it seems there are parallels in objective measures of these components compared with witnessed events, which are what citizens use as a signal to determine whether they take violent action.

The events seem to follow quite accurately along what's been written in social contract theory, and from Thomas Paine's time & writings.

Obviously these type of writings are from times that are dark and violent, and violence benefits few if any which is why there's good cause in trying to prevent that kind of degradation in existing systems, and the dynamics that cause it.

[trod123]

> the law must determine what is fair as society changes over time

This has been the ideal that has been put forth generally quite a bit, but it also almost always neglects the structural failings that must equally be addressed at the same time.

For example, at what point would you say that case law overrides the constitution?

According to the law, it holds the constitution as supreme, and that no representative has the authority to exceed or violate that which is granted in the constitution, this pertains to the judiciary as well as the executive and legislative. It is up to the courts to enforce this as the last pillar of society (for non-violent conflict resolution).

In a general society with a rule of law, when there is a admitted constitutional violation, it must be immediately cured.

Issuing a decision that prevents a constitutional remedy while recognizing the violation is arbitrary, a direct contradiction, exceeds the authority granted, negates the constitution, shows a violation of a sworn oath to uphold the constitution, and causes the entire "rule of law" and its institutional credibility to be called into question.

If you allow exceptions to the constitution, the fundamental component, "equality under the law", fails, and that means we don't have a "rule of law".

The natural outcome of this being increasing violence, which no one wants because it benefits no one.

Bringing society as a whole from a "rule of law" to a "rule by law", which inevitably (over time) causes society to fail violently towards totalitarianism/tyranny, is stupid but may have short term benefits for the corrupt. The harms of such are systemic and grow exponentially.

It is not a matter of catching up to offenders, it is a matter of competency. This is a professional occupation where corruption is an ongoing structural issue, and actions must be reasonable to protect both society and the individual rights equally.

No true American would accept soviet-style kafka courts without any of the normal protections regardless of the crime, and that is the danger faced with the decision here.

Corruption of the state will always seek to use such types of systems to justify their existence often inducing, planting evidence, or causing such crimes to be committed. Some may be actual offenders, but others may not and no differentiation is made. It may even be done for political purposes such as with The Gulag Archipelago.

It is a slippery slope which cannot be walked back later as the damage will have already been done with the punishment being front-loaded.

If there is a question regarding a boundary of a policy or process, you get a legal opinion, and base your actions on that opinion. This is well established in many sectors, including but not limited to the Business Judgment Rule. This is what is needed for this to be done in "good faith".

Allowing a blanket good-faith exemption and exclusion for government to do anything not directly covered by existing case-law without repercussion is a dangerous precedent towards tyranny, especially when they had the probable cause at the start to do it the right way.

It seems like you neglect many of these important foundational subjects. The lack of accountability control encourages the police and related apparatus to violate the law, and thus violate the public trust when this is unenforced.

The main outcome in a society absent a "rule of law" is overwhelming violence. This is what most people fail to realize, and many today embrace magical thinking and delusion.

Mass delusion has greatly overtaken this country and will soon destroy it if it is not stopped.

It is of critical importance to base our protective systems in objective measures which are external, and rational thinking and critical reasoning that logically follows without contradiction or circular reasoning.

To fail at rational thinking, is to embrace delusion and become schizophrenic, a common malady in the totalitarian state (Joost Meerloo). This is covered well in topics on the banality of evil, and the radical evil (WW2).

The crime accused is repugnant, but equality under the law, and constitutional protections are sacrosanct, and far more important than any single person.