But it's equally absurd to interpret the fourth amendment as merely requiring a cop to say they 'thought they smelled weed' for the entire amendment to be nullified.
Worse, I’ve heard people ask if the police has a search warrant before allowing them to search their cars on a traffic stop be subjected to many hours of being stopped by the side of a highway followed by a K-9 unit which scratches the whole car based on where the handler taps on the car.
The officer doesn’t care because they get paid for the whole time they are there. What about the car driver and other occupants though? What if you are on your way to work and fired because you are late because the police stopped you? Why don’t I deserve to get paid for my wasted time?
I didn't say it was. I said that about Gonzalez v. Raich. Terry though is a perfect example of how legislating from the bench is basically unavoidable. The constitution doesn't outline what a search without a warrant should look like. The court could say, we don't care leave it to statute. But likely any state statute would be challenged on the grounds that it was permissive beyond what is "reasonable". So they'll just get the problem back in another form.
They could say, this needs an amendment but what is to be done in the meantime? So they are stuck. They either have to say, "no warrantless search is "reasonable". Or they have to start defining a standard under which a warrantless search is "reasonable". Either way, they are effectively writing law.
They have to take non-specific language and interpret it to a specific incident. It is exactly the kind of canard they faced in the case linked here. Bullets aren't a literal search or seizure but obviously the constitution doesn't intend to allow a cop to shoot you with impunity because that's not a "search or seizure". Shootings have to be governed by the "reasonable searches or seizures" doctrine cause there isn't anything else.
If this case is activism as the poster I replied to implied then so is Terry. The call just came down on the other side this time. It's not way out there to ask a cop to think, "there might be multiple reasons why this person is speeding away from me now and it is not 'reasonable' to assume they are armed and dangerous and need to be shot." And grouping the polices's right to use deadly force under the 4th amendment isn't either. It's my opinion that neither this case, nor Terry is particularly "activist".
> Of course the Courts aren't objective. Law isn't code. That doesn't mean we can strive for them to be, as much as they can be.
This is exactly my point. We can ask for Some people are just going to call every decision they don't like activist. But the implications from a case like Terry or this one are clear; judges have to engage in something a little more than literal readings of legal text.
Only because a search without a warrant is by definition not backed by any legal authority, and without legal authority the only way they get to do the search is with the owner's permission. A "search warrant" is nothing more or less than legal authorization to perform the search—whatever form that authorization might take. Any law authorizing a search would itself be a warrant (though perhaps an unconstitutional one), which implies that a law authorizing "warrantless searches" would be self-contradictory.
Except this is exactly what Terry v. Ohio is about. It defines "stop and frisk" type searches under "reasonable suspicion" as constitutional despite the fact that the officer does not get a warrant.
Terry turned on the interpretation of the word "unreasonable."Prior to that, the "fruit of the poisonous tree" doctrine, which prevents illegally-collected evidence from being used in court, another interpretation, would have prevented a cop searching-and-seizing an M-16 on Broadway from arresting, charging and convicting its surreptitious holder.
I think the Court erred in this. But it was far from wanton judicial activism. (Which to be fair the Court has engaged in.)
> there is an umpire at the end of the day that can "objectively" interpret law
Of course the Courts aren't objective. Law isn't code. That doesn't mean we can strive for them to be, as much as they can be.