[everforward]

Those are only nominally different, insofar as the justice system chooses to call some acts one and some acts another. It doesn't speak to the nature of the act, only what we choose to classify it as.

I.e. unconstitutional searches could be criminal activity if the judiciary just decides to classify it differently.

There are certainly differences in the nature of the act that we could talk about, but how the judiciary classifies them is only a nominal difference.

[refulgentis]

Idk why you keep saying way out there stuff, then repeating back mundane stuff.

Yeah, the difference between a bad thing and a good thing is what judges say.

No, there is a difference bigger than "nominal", which means in name only. Go out on the street and try explaining why someone having child porn, and cops handed a subscriber name + child porn image by Google exactly the same thing, there's only a "nominal" difference.

[everforward]

I'm genuinely at a loss for how this doesn't make sense. "Crime" is absolutely a nominal status. Things can be made into a crime or no longer a crime arbitrarily. Abortion was legal across the US, and then it wasn't. Abortion didn't change at all, but how we refer to it did. Ditto for possession/distribution of alcohol, some kinds of firearms, slavery, etc, etc.

I am not arguing that possession of child pornography is good or permissible, my point is that the things police do are only "police actions" rather than "crimes" because we choose to refer to them as such. We could pass a law tomorrow that says unlawful search and seizure is a crime, and then the "crime" label would apply to the police as well. The specific crime would be different, but both would be categorically "crime". It is undesirable to make possession of CP by police a crime because it would interfere with their ability to investigate it, but those justifications do not apply to why unlawful search and seizure should not be a crime or at the very least fruit of the poisoned tree.

[refulgentis]

> I'm genuinely at a loss for how this doesn't make sense

I'm really not trying to be mean or making charged comments in any of the following, I apologize if it reads that way. I really appreciate your investment in this thread, it wasn't a driveby, you mean what you're saying, you're not trying to score points AFAICT. I think working through my discomfort is the best way to pay that forward. I save the most concise / assuming / judgey version of this for the end of the post.

There's just something very...off....with the whole thing. Like it reads like an intellectual exercise, I get the same vibe as watching someone work really really hard to make a philosophical argument to stir conversation.

You have these absolutes and logical atoms that seem straightforward and correct, but they're handwaving away a whole field and centuries of precedent.

There's this shuttling back and forth between wide scope and narrow scope thats really hard to engage with. Like, yes, we know "crime" is a nominal thing. My mind immediately jumps to "yes, calling things 'bad' is nominal and subjective" ---

Then, my mind transports me back to my sophomore year english class where someone starts free-associating about how nothing can be 100% confirmed to be real. I'm frustrated there, because, yes, that's true but doesn't shed any light, there's nothing to be gained from mining that vein, and doesn't map to how people have to engage with the world day to day.

You also have a very hard time accepting that this isn't reducible down to "unlawful search and seizure via 4th amendment violation" --- I don't mean to be aggressive, here: after a day and a lot of your thoughts, I still genuinely don't know if you understand that these things have ambiguities and that's why there's a whole industry around them.

I think we agree on:

- calling things bad is subjective.

- similarly, calling things "crimes" is subjective, and part of that is contextual (ex. we allow some people to do some things, but not others)

Then from there, I bet you'd agree to:

- therefore, we need some sort of dispute process to sort these things out

- lets say that's called the current legal system

Then from there, it feels like you're asking us to agree to:

- if something is declared judged to be bad moving forward, it is okay to punish those who did the bad thing in the past, no matter the circumstances

- now lets apply that specifically:

- if cops did a thing that's not allowed moving forward, then it is a moral imperative for the cops to drop every case that involved doing the thing that's not allowed moving forward

That's just way too far for anyone who isn't doing a philosophical exercise.

ex. Miranda v. Arizona established what we call "Miranda rights" -- now that a judge says there's a specific incantation to recite that courts will accept as proof criminals were advised of their rights. Are all cases where the Miranda rights were not read suddenly dropped? No, that'd be laughable, no society would tolerate the legal system dropping every case where someone was arrested in that scenario.

The most concise thing I can say, which unfortunately is judgemental due to the conciseness, is the whole thing reeks of an engineering mind expecting their understanding of the law to be an absolute, somehow overlooking that the whole point of the legal system above entry-level courts is there are no absolutes. From there, lets say you know that and accept that, because that's very likely. Then what happens with the Miranda rights thing? That's one of countless examples, but it's useful because A) I'm sure you grok Miranda Rights if you're in USA B) the principles you're espousing being applied there would lead to an obviously unacceptable outcome, so if your instinct is to say "yeah, do it, free everyone who talked to the cops!" I know you're just killing time doing a thought exercise --- which I do sometimes too! Not judgement.

[everforward]

I do want to apologize for the hostility or frustration of that comment. It had read as a drive by to me, but it wasn't a productive way to engage regardless. I sincerely appreciate you engaging, and I think your post does bring interesting points and I appreciate you taking the time to write them down.

> There's this shuttling back and forth between wide scope and narrow scope thats really hard to engage with.

I can very much see how it reads that way. My intent was to address the comment one or two up from yours saying that they were different because one is a crime, but that is very much a different conversation than this specific case. It feels a bit like I'm having two separate conversations on my end too, which is somewhat difficult for me to do without either writing a novel or losing track of nuance. I'll make an effort to keep this more constrained so it feels less like arguing with a moving target, that is certainly not my intent.

I'm with you on the parts that we agree on, and the parts that you think I'd agree with.

> Then from there, it feels like you're asking us to agree to:

The part that feels, to me, like it's not asking too much is that we already ask this of every other citizen in their everyday life. E.g. (and I apologize for not having a less contentious example) the ATF has repeatedly refused to set quantifiable standards for when someone is selling enough firearms to need an FFL. It's all about being "engaged in the business" and whether sales are for profit or collecting; there is no hard and fast "you must if you have X sales that meet Y criteria".

That's actually much more clear than it used to be; it used to just be "engaged in the business" and you just had to guess whether liquidating a collection made you in the business or not.

It doesn't feel like a huge step forward to say that the people pursuing crimes need to handle ambiguity at least as carefully as a private citizen. Especially considering that police can get a warrant as a definitive answer, where a judge typically won't answer hypotheticals from a citizen.

Furthermore, that was exactly how it worked until the good-faith exception was made in United States v Leon, in 1984 (not a joke, but I did have a chuckle. It's hyperbole but a cute coincidence). A significant portion of Americans were alive when the good faith doctrine didn't exist, and this evidence would have been fruit of the poisoned tree.

It's a little hard for me to accept that the Overton Window has shifted so dramatically that people are unwilling to accept a system they were born with.

> if cops did a thing that's not allowed moving forward, then it is a moral imperative for the cops to drop every case that involved doing the thing that's not allowed moving forward

I would argue for more nuance than that, but that's close. Briefly, I am arguing that evidence obtained via searches that are found not to be supported by the 4th Amendment is necessarily fruit of the poisoned tree, and should not be admissible as evidence in the case nor as evidence to obtain a warrant for a later search. That may result in the charges being dropped in some cases, and not dropped in others where there is other substantial evidence.

Conjecturing about this case, it seems like they would probably have to drop the charges. I don't know though, maybe they have other evidence obtained via other means they could use.

> ex. Miranda v. Arizona established what we call "Miranda rights"

Aside, but Miranda is an interesting example because he was re-tried without using his confession and the conviction stuck that time. An interesting example that a fruit of the poisoned tree policy does not necessarily require dropping charges.

I am perhaps out of the Overton Window here, but I don't see why that is an insane outcome of Miranda though I will certainly acknowledge that there would be fallout. My line of thinking is essentially that the text of the 4th did not change, which means that Miranda rights were free for anyone to claim at virtually any point in history (presuming they thought to make the argument). The outcome is necessarily prejudiced; either against defendants who could have argued for rights they didn't know they had, or against the judiciary for failing to establish that those rights exist at an earlier point. It makes sense to me for that to be prejudiced against the judiciary, because they are the arbiters of what rights people have, and had the ability to suggest and establish those rights at any point they wanted. Essentially if we were going to assign who is responsible for knowing that Miranda rights should exist before they did exist, I would expect that of the arbiters of rights far more than the defense attorney.

I am totally okay with that being unpopular, though. I'm not arguing for the majority of people, just myself.

> the principles you're espousing being applied there would lead to an obviously unacceptable outcome, so if your instinct is to say "yeah, do it, free everyone who talked to the cops!" I know you're just killing time doing a thought exercise --- which I do sometimes too! Not judgement.

Just to reiterate briefly, I do not think they should be immediately set free, but I do think they would be due a retrial without their confession (in the Miranda case specifically) if their confession is material to their conviction. It's not a thought exercise to me, but I may be outside the Overton Window.

I am aware that this would potentially result in some guilty people going free, but I would eat my hat if there wasn't a single person in jail or prison who was innocent and coerced into a confession that could have been avoided if they had known their Miranda rights. I also know that there are no absolutes in the law. It is absolutely a vague mess propped up by piles of precedent that can even be conflicting.

My contention is that given the ambiguity of the law and the power the government wields, defendants should be offered the full protection of the law as we currently understand it. I find the situation frustrating, which makes me look for a source to blame, but I think my real underlying sentiment is a feeling that it is unfair for citizens and defendants to suffer the consequences of the ambiguity the legal system.

It is hard for me to fathom the despair of someone who was innocent but confessed to a crime after a 12 hour investigation without knowing that they could remain silent or demand a lawyer. I cannot fathom the despair of watching the Miranda trial and knowing that their lawyer could have argued the same thing, but didn't, and now they're stuck in prison for however many years without any recourse.

That doesn't directly apply to this situation, because I do think this guy is guilty, but these precedents will be used in cases against innocent people. I find it a condemnation of our justice system if we are willing to risk the rights of innocent people to nail a few convictions.

If you have the time, I would really encourage reading the dissenting opinion in United States v Leon (I'll link it below). Justice Brennan has a far more well articulated opinion than me, that is likely less far outside the Overton Window. I'll leave a snippet that I find persuasive here, but the whole thing is worth at least a skim.

" In contrast to the present Court’s restrictive reading, the Court in Weeks recognized that, if the Amendment is to have any meaning, police and the courts cannot be regarded as constitutional strangers to each other; because the evidence-gathering role of the police is directly linked to the evidence-admitting function of the courts, an individual’s Fourth Amendment rights may be undermined as completely by one as by the other."

https://www.courtlistener.com/opinion/111262/united-states-v... (you have to click the Dissent tab, I can't link directly to it and dissenting opinions seem to be difficult to find deep links for).