By consenting to search, you’re not alienating your rights; you’re waiving them in a particular situation. On your theory, because the Sixth Amendment gives you the right to counsel, you can’t NOT use counsel and handle the case yourself.

The Sixth Amendment gives you nothing. It protects a right you have. The Fourth Amendment specifies the only process government my use to violate the enumerated rights in that amendment. That government action being searching and seizing only by warrant and no other process. You have the right to keep and bear arms too, but you are not compelled to do so by the Constitution – because it is a limit on government action and not a mandate upon you. The Fourth Amendment is a mandate upon government – a process it must follow.

There is a qualifier in the Sixth Amendment – the word “Enjoy”. It means “to use or have the advantage of” in this context. What would be wrong with a person using or taking advantage of their own council? And, you can have the advantage of something whether you use it or not.

Bottom line is the difference between the government following a constitutionally mandated process(the warrant) and not violating a right you may choose to exercise or not.

Government can’t deny you the trial thingie, and it must get a warrant to search you, your property, or arrest you(except for the cases where the police catch you in the act). See the difference?

Woody

I wouldn’t have a problem with the police setting up a hotline that people could call to set up this sort of search. I do have a problem with cops showing up and making parents “an offer they can’t refuse.” And how long do you think it will be before the parent’s refusal becomes probable cause for a warrant? I give it about three weeks of actual implementation.

So as long as they’re asking to come in and not trying to force their way in, they don’t need probable cause.

Absolutely correct. If the parent/guardian says no, then the officers must leave. If the parent/guardian says yes, then the teen can been charged with whatever is found. The only two real problems they run into is, One the laws of the state of Mass (they may claim the parent/guardian cannot give permission because the kid has a “reasonable expectation to privacy — even though they don’t). And two how they ask for consent. I always tell my rookies to asked, “May I search your home, vehicle etc.” Alot of police officers say, “You don’t mind if I search . . .” a good defense attorney will always have the items found thrown out because of the ambiguity of the request’s phrasing.

Personally, I’d say no to any such request. It cannot be held against you — something I had to point out to a law school student riding with me one day who told me I had evidence to prove something was being hidden because the guy refused to let me search.

To catch a killer, yes, very much so. Besides, there’s no intimidation. They won’t even be wearing uniforms.

The officers are working off reasonable suspicion and without uniforms anyone would be hard pressed to establish any coercion.

Why worry with the part about them having guns and the power to haul you or your child off to jail, they’re not wearing uniforms… yep, no chance of intimidation there…

The line of reasoning that the police can’t or won’t project any coercive influence simply because of their wardrobe is… suspect at best…

Florida v. Royer

No judge ever has to sign off on a search that was obtained with consent.

If you get pulled over and give permission to search your car, the cops can legally search your car without a judge having to sign off on anything.

elgeneralisimo was being sarcastic, when the police decide as a matter of policy to forgo the constitutional system of checks and balances, and we as a society decide to let them, what’s the point of having checks and balances ?

On the downside, some are going to be intimidated into acquiescence, but on the upside, some potential crime may be prevented if we trample the Bill of Rights…

Just as much as the government can’t violate these rights, you cannot divest yourself of them. These rights are inalienable.

Woody

woodcdi on November 18, 2007 at 1:52 PM

By consenting to search, you’re not alienating your rights; you’re waiving them in a particular situation. On your theory, because the Sixth Amendment gives you the right to counsel, you can’t NOT use counsel and handle the case yourself.

Three officers in plain cloths come to your door and say “We have reason to believe your son/daughter may be involved in violent gang activity. We would like to search his/her room for weapons. Will you let us?”

There, they have given the scope and object of their search – the same required in a search warrant. The only real difference in a formal warrant and this procedure is the probable cause portion which is virtually impossible to establish given the nature of gangs to begin with. The officers are working off reasonable suspicion and without uniforms anyone would be hard pressed to establish any coercion. All the parent needs to say is yes or no.

As for the privacy issue regarding the child. Unless the child has been allowed to put a lock on the door that only they have and have not allowed anyone in their room without permission it would be very hard to lay a foundation of expectation of privacy. If they have been allowed that sort of defense by the parent, the parent has already lost.

So, intimidation tactics by people who posses the power to imprison you is a good thing ?

To catch a killer, yes, very much so. Besides, there’s no intimidation. They won’t even be wearing uniforms.

What judge signed off on the original request to search ?

elgeneralisimo on November 18, 2007 at 12:41 PM

No judge ever has to sign off on a search that was obtained with consent.

If you get pulled over and give permission to search your car, the cops can legally search your car without a judge having to sign off on anything.

How noble of them.

But, philosophically, since when in this country do we let THE POLICE determine public policy? Since when do THE POLICE determine what our rights are? Since when did we make them PUBLIC MASTERS instead of PUBLIC SERVANTS?

Pardon me if I demur.

Shall we talk abortion? Abortion is not up to a parent..it opened the door and successfully challenged your claim.

Pam on November 18, 2007 at 11:50 AM

What you say is true in some states but even that is not universal. Generally speaking parents speak on behalf of the child in all legal matters. I agree there are some statutory exceptions regarding abortion but those are the exception and not the rule and those statutes are under going challenges by parents in many states and parents have prevailed over such laws in some cases.

There is no doubt in my mind that in this case where 1) said child has no right to own a firearm and 2) parents have given the police permission to search, that noting un-Constitutional is happening.

I’m not sure why people are saying this is unconstitutional. I agree that it’s distasteful and wrong, but if they’re asking permission, I don’t see how that violates anything. I do think that people should be notified that they are perfectly within their rights to say no, and I hope everybody says no, but still.

Read the Constitution. The Fourth Amendment says, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” I don’t see any exception made available to that rule in this limit upon government if the government gets permission from the person to conduct any such search or seizure. To coin a silly leftist’s phrase, you’d have to engage in a “‘willing suspension’ of the Constitution” to do these searches, or use any information or evidence gathered in these “searches” in court.

Just as much as the government can’t violate these rights, you cannot divest yourself of them. These rights are inalienable.

Woody

“Charge the Court, Congress, and the several state legislatures with what to do with all the violent criminals who cannot be trusted with arms. We law abiding citizens shouldn’t be burdened with having to prove we are not one of the untrustworthy just because those in government don’t want to stop crime by keeping violent criminals locked up.” B.E. Wood

So, it’s unconstitutional for the police to search someone’s home with permission?

I don’t get it.

Even still, I don’t get the problem here. If this program catches murderers, I really wouldn’t care.

So, intimidation tactics by people who posses the power to imprison you is a good thing ?

You don’t get probable cause just because someone refuses to allow their home to be searched.

No judge could sign off on that without more of a reason.

What judge signed off on the original request to search ?

It just sounds so nice and friendly, helping out the parents who are afraid of their own kids. But the police have to do their job and take drugs and prosecute dealers and killers, so this will lead to arrests. It just seems like the focus is all on what happens at the front door and not what happens afterwards.

I am 100% in favor of the police arresting the criminals. And I can’t get too worked up about the rights of teenagers to have guns and drugs.

What’s next, busting up windows?

We could call it ‘Kristallnacht’ or something like that.

Oh, wait…

Having said that, this is a BS idea. If the parents can’t control their kids, why is it the cops responsibility? It would be nice if crime prevention was the goal, because if it was, the parents would already be taking care of this.

Perhaps this will have a positive effect just as a subject of discussion? I can’t imagine a huge amount of parents being so ignorant that this would be a surprise to them. The rest just don’t care that their kids have guns and this wont be viewed as help, but as the first step towards a fascist state. Thus, the purpose is lost.

I guess those who refuse to get involved with their kids, should have no excuse they can use in court to mitigate the punishment the child will receive when he/she gets caught with a gun. That seems fair to me.

Shall we talk abortion? Abortion is not up to a parent..it opened the door and successfully challenged your claim.

Pam on November 18, 2007 at 11:50 AM

That’s a state issue. Many states do not allow parental consent to be skipped.

Ah, so they ask around to find out who people think are the ones shooting people, then confiscate the gun, which then turns out to match the bullets they pulled out of someone. Then they can arrest the “youth”. Label it a community outreach program.

Clever.

MamaAJ on November 18, 2007 at 11:07 AM

The article states that they will not go after open cases, because they don’t want to risk the case.

Even still, I don’t get the problem here. If this program catches murderers, I really wouldn’t care.

One thing I haven’t yet seen mentioned is how likely a denial of permission will turn into those three officers waiting just outside the premesis for a search warrant to be ginned up.

steveegg on November 17, 2007 at 8:24 PM

You don’t get probable cause just because someone refuses to allow their home to be searched.

No judge could sign off on that without more of a reason.

Absolutely sickening.

Splashman on November 17, 2007 at 6:29 PM

Case in point.

Maxx on November 17, 2007 at 8:28 PM

the parent or guardian speaks on behalf of the child in all legal matters, whether the kid likes it or not.

Shall we talk abortion? Abortion is not up to a parent..it opened the door and successfully challenged your claim.

When I first read the story, I was thinking, why on earth wouldn’t the parents just tell the cops to go away, and take the gun from their kid themselves. But a lot of parents are probobly afraid of their children, especially if those kids are doing drugs, or in a gang, or walking around with firearms.

If the parents ask the police to come in, I don’t see a problem.