Re:Hacker Who Sent Me Heroin Faces Charges in U.S
by klodolph on Friday October 16, 2015 @01:44PM
(#10400876)
This is a common misconception. The fourth amendment only limits the actions of the state, and case law establishes how evidence is excluded from trials. So, if I break into my neighbor's house and find child porn on his computer, that evidence is admissible in court. But if the police break into my neighbor's house without a warrant and search his computer, it isn't admissible, because it's a fourth amendment violation. But if they have a warrant to search the computer, it is admissible. If the judge who issued the warrant made a mistake and shouldn't have issued the warrant, the evidence is still admissible. This last situation also surprises people.
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Re:Hacker Who Sent Me Heroin Faces Charges in U.S
by Jemmeh on Friday October 16, 2015 @02:10PM
(#10401067)
Makes sense that it's admissible in that case.
Would you still be able to be held legally responsible for breaking the law to get the information though? In that case, the evidence would be admissible but wouldn't you be in trouble for breaking into your neighbor's house?
Re:Hacker Who Sent Me Heroin Faces Charges in U.S
by mulletbum on Friday October 16, 2015 @02:30PM
(#10401205)
Yes, you are correct.
Re:Hacker Who Sent Me Heroin Faces Charges in U.S
by vox_mollis on Friday October 16, 2015 @04:03PM
(#10401674)
Seems quite the loophole. So a law enforcement agency could, in theory, be able to hire private contractors that then obtain admissible evidence that would otherwise be inadmissible if the LEA did it themselves? Do I understand this correctly?
Re:Hacker Who Sent Me Heroin Faces Charges in U.S
by andrewpi on Friday October 16, 2015 @04:11PM
(#10401718)
No, if someone is acting as an 'agent' of law enforcement, the evidence would be excluded via the exclusionary rule just the same as if the evidence was collected directly by the police themselves.
Re:Hacker Who Sent Me Heroin Faces Charges in U.S
by Jtsummers on Friday October 16, 2015 @04:07PM
(#10401696)
They can't employ them to do illegal things. They'd have to have some sort of plausible deniability. If they did, the private contractor would be acting as an agent of the government. If they circumvented this by creating some cover story and payments from some other sources, then they might get it into courts, but if it came to light it'd be thrown out (and the agents/agency involved would likely end up in some degree of trouble).
Re:Hacker Who Sent Me Heroin Faces Charges in U.S
by x5n1 on Friday October 16, 2015 @02:02PM
(#10400999)
Surprising that a judge doesn't make a mistake all the freaking time. The legal system is a religion, it has little basis in reason.
Re:Hacker Who Sent Me Heroin Faces Charges in U.S
by tptacek on Friday October 16, 2015 @02:30PM
(#10401201)
Think in terms of branches of government. The executive branch investigates crimes, and the judicial adjudicates them. The exclusionary rule is designed to punish the executive branch for abusing the Fourth Amendment. But if it's the judge that's mistaken, it's the judicial, not the executive, at fault, and the incentive behind the exclusionary principle ceases to exist.
(If it helps: the US's exclusionary rule is significantly stronger and more consistent than those of European countries, particularly the UK.)
Re:Hacker Who Sent Me Heroin Faces Charges in U.S
by rayiner on Friday October 16, 2015 @02:35PM
(#10401238)
Indeed, the problem here is too much reason (not applying the exclusionary rule when the incentives it seeks to create do not apply), and not enough religion (always applying the exclusionary rule to benefit the accused when the government makes a mistake).
Re:Hacker Who Sent Me Heroin Faces Charges in U.S
by ta0n0n0 on Friday October 16, 2015 @02:56PM
(#10401349)
Doesn't the fact that a judge's career depends on promotion by the executive branch create such an incentive?
Re:Hacker Who Sent Me Heroin Faces Charges in U.S
by klodolph on Friday October 16, 2015 @03:44PM
(#10401588)
It's more complicated than that... in order for the judge to abuse the system this way, the police would have to be acting in good faith, but still bring a groundless request to the judge, who would have to figure out that the warrant was groundless but decide to issue it anyway. That's a pretty unlikely scenario.
Here's a comic about the 4th amendment: http://lawcomic.net/guide/?p=1604
Re:Hacker Who Sent Me Heroin Faces Charges in U.S
by thaumasiotes on Friday October 16, 2015 @03:33PM
(#10401521)
Why should there be no penalty to the judicial branch for abusing the fourth amendment?
Re:Hacker Who Sent Me Heroin Faces Charges in U.S
by tptacek on Friday October 16, 2015 @05:08PM
(#10402015)
Again, in Europe, it's considered a little weird that we have an exclusionary rule that applies to any branch of government.
But the reason is: judges aren't abusing the Fourth Amendment; they're the arbiters of it.
Re:Hacker Who Sent Me Heroin Faces Charges in U.S
by thaumasiotes on Saturday October 17, 2015 @04:37PM
(#10405963)
Only the Supreme Court can claim that; lower judges are overruled all the time (in some sense).
Re:Hacker Who Sent Me Heroin Faces Charges in U.S
by avn2109 on Friday October 16, 2015 @02:07PM
(#10401041)
The judge does make mistakes all the freaking time. But in practice the system is so stacked against the defendant that this effect is negligible.
Re:Hacker Who Sent Me Heroin Faces Charges in U.S
by icehawk219 on Friday October 16, 2015 @01:46PM
(#10400892)
That makes surprisingly good sense. The more you know. :) Thanks.
Re:Hacker Who Sent Me Heroin Faces Charges in U.S
by GPGPU on Friday October 16, 2015 @03:16PM
(#10401446)
People have been arrested when burglars stole their computer and claimed to have found "child porn" on it.
http://www.cnn.com/2011/10/06/us/california-robbery-porn-bus...
4th amendment or not, you'd think that the "rules of evidence" and the word of a burglar would lend credence to the explanation that the burglar planted it to make himself seem more respectable in the eyes of the court.
It's outrageous in this case, as reported by CNN, that the burglars were not arrested. It means you can commit any crime as long as you plant some illegal porn!