Victims of fruitless searches and seizures should be AUTOMATICALLY entitled to this kind of payment.

Suppose that getting the $25 payment for a fruitless search sounds like a good deal to me – after all, it takes me all day to get $25 panhandling. Why shouldn’t I call 911 from a pay phone and report that someone with my description is acting suspiciously, or wait until I see a police car drive by, and throw an airsoft gun into the bushes and run like heck (but not fast enough, of course, to actually escape)?

How do you propose dealing with people trying to ‘entrap’ the police into fruitless searches for profit?

You have convinced me that you are not a troll under the traditional definition — I stand corrected. However, please keep your comments relevant and civil if you would like to comment here.

wolfefan: Could you flesh it out a little more?

Absolutely: (i) get rid of the exclusionary rule; and (ii) easier remedies for victims of fruitless searches and fruitless seizures.

You know how when an airline bumps you from a flight, you get a payment. You don’t have to go to court to get a payment. You don’t have to fill out extensive forms to get a payment. Rather, you GET a payment. Victims of fruitless searches and seizures should be AUTOMATICALLY entitled to this kind of payment.

Now you might be thinking that this new remedy I have dreamed up (with a little help from the airline industry) switches the perspective from which 4a “reasonableness” from an ex ante basis to a post hoc basis. If you are thinking that, then you are absolutely correct. Trying to emulate and evaluate ex ante judgement calls is a decisional process too easily manipulable (and regularly manipulated) by police.* The proof is better adjudged from the pudding. If a department finds itself making lots of fruitless searches, then they will need to tone down their act or go bankrupt. If a police department makes no searches, then they will catch no criminals. The idea is to calibrate the payements so that over the long run, FRUITFUL searches and seizures are something that happen more often than FRUITLESS searches or seizures.

My system provides a much more determinative and fair and adjustable metric than the exclusionary rule world we currently live in. Sure, it presumes a fruitless search was unreasonable. That may not be perfectly fair, but it is a lot fairer than telling someone stopped for driving while black that he can save up and hire a lawyer and maybe win a small award for the violation he suffered, unless of course the jury is racist or biased against poor people or whatever (which is the current 4a enforcement system with respect to innocent victims).

Sure, the change I am suggesting is fundamental, but no more so than Brown v. BOE or Roe v. Wade. The first step is getting rid of the exclusionary rule so that the police run roughshod over us until we are angry enough, as a society, to demand a remedy. The new remedy, whether it is my idea or some creative 4a law professor’s idea, will be sure to be fairer to innocents than the exclusionary rule driven landscape we now inhabit.

FOOTNOTE

* see, http://www.missoulian.com/news/local/article_94930e40-ba0d-11de-9fcf-001cc4c03286.html (the declaratory judgment opinion issued 15 Oct 2009 by the court in this case — deals with reasonableness of force rather than search, but the concern about the police having their way with juries applies).

I don’t know about trolling, but at this point isn’t the guy legally innocent? Based on the OP he hasn’t been found guilty of anything. By your standard shouldn’t the Fourth Amendment apply to him?

IANAL and I’m not going to spend much time on it, but I have trouble figuring out what a rule saying “only innocent people get to use the Fourth Amendment” would look like. You say that you are sincere in your proposal, and I have no reason to doubt you, but honestly – you didn’t really make any proposal. Just a a couple of throwaway lines that taken at face value make no sense to me. Could you flesh it out a little more?

But warrants don’t work that way. They are executed by law enforcement, with the imprimatur of a judge saying it’s ok to rummage through all the irrelevant materials in order to get to the relevant materials. An officer looking for a knife in a house has permission to look anywhere a knife might be hidden, even if there is no knife in many of those places. An officer looking for a file is permitted to look through the entire file cabinet and anywhere else the file might be hidden. Here, officers effectively are the document reviewers, using searches or other methods to find the relevant emails among the rest of them.

Orin: How would you propose to cure what you view as the Fourth Amendment problem here? Surely the solution is not to put the burden on Google to find the relevant emails?

Is it purely a matter of semantics or process here? Should the government have appointed a “filter team,” and detailed the appointment of such team in the warrant application, in order to review all of the subject’s e-mails and only pass on to prosecutors and investigators those which the filter agents (all themselves usually FBI agents) believe are relevant to the case? That would certainly not be required in most circumstances, were we talking about physical records. If the warrant said “search for letters discussing the alleged fraud,” then the FBI search team would be legally entitled to review all letters in the office or house, while only “seizing” the relevant letters. In the computer realm here, the e-mails were really not “seized” in the traditional sense, because they remained on Google’s servers, fully accessible to the defendant, unlike a traditional seizure of records which deprives the subject of the use of the records while the government has them.

Orin Kerr: Cleanville, If you’d like to comment here, please stop trolling. Thanks.

Now I thought that trolling was writing something that you didn’t sincerely believe for the purpose of angering others. I sincerely believe what I write here, and I don’t see why my beliefs about how the Fourth Amendment is, and how it ought to be, would anger anyone. So, to my mind, I am not trolling. My comment on this thread is an excellent example of not-trolling as I understand the concept. I call for the end of the exclusionary rule. I am not the only one to call for the end of the exclusionary rule these days. It is a real possibility. It would take care of the difficult issues noted in your post. You may not agree with my proposal for some reason, but I don’t see why you would possibly be angered by it, or why you would possibly think that I am not sincere in my proposal (just to be clear: I most certainly am sincere).

Where is the “trolling”? Is there some new definition of trolling that I am not aware of?

If you’d like to comment here, please stop trolling. Thanks.

While I agree it would be absurd to subpoena Google for “e-mails involving fraud” (how would the Google technicians possibly know?), I would like to point out that the document in question is not an email. An email goes from one person to another. The defendant in this case was using an email system as a journal.

As a matter of practice, it may be difficult to tell ‘email’ emails from ‘journal’ emails. I recall hearing of a case where people were communicating as follows: person A drafted an email, and saved it in a ‘Drafts’ folder. Person B logged in to the same account and viewed the same message, and updated it with his reply, and so on. No one ever hit ‘Send’. This was to avoid surveillance that was listening only for emails that were ‘sent’.

The Search for Financial Villains Founders

Apparently, the trial of Bear Stearns hedge fund managers Ralph Cioffi and Michael Tannin is not going so well. These are the fellows with the incriminating email trails, and the apparent habit of taking their money out of the funds as they started to go bad.

Only it turns out that this isn’t quite the whole story:

Think of the entirety of the gmail account as a storage trunk. The emails are letters contained in the trunk.

The know there are letters in the trunk that might contain information about criminal activity. So they get a warrant to seize the trunk. Then they search the trunk for the information.

And that analogy works better here than the judges rationale.

Google is a 3rd party. The judges rule would force google to search through the trunk to find the information. So how would the judge have google comply with his more detailed order, it seems like quite a burden to put on a third party.

If google had in its a possession a physical trunk with the information inside, couldnt the government just seize the trunk?

Child pornography requires an image file. There can be other emails without images with evidence of the crime (e.g., offers to purchase), but it would be very simple to limit a warrant only to those emails that contain embedded or attached images.

But what about ASCII porn?

In a case such as this, how would the judge expect the warrant be limited yet still cover the relevant evidence? Is this to be a game of “guess the terms to search for”?

Nick

disagree though that it was overbroad in the first place. remember the 4th amendment’s particularity requirement requires listing not of the things searched but only of the things to be seized. The agents are certainly searching the emails here…but can you really seize an email in the manor it was done here? the agents only “seized” a copy-the defendant wasn’t deprived of access to the email during the “seizure.” This is particularly true when the warrant is served on a third party as here or when the warrant is served on someone who is well aware of what the police are looking for. As for United States v. Riccardi, 405 F.3d 852 (10th Cir. 2005) )holding seizure occurred when searching hard drive) it isn’t clear from the facts there whether there was a copying of the drive or the physical drive was taken.

http://www.gnupg.org/