The English common law said THAT?
Nor does it say that cops can't have someone sneak a bug into
someone's home without a warrant.

Thus the need to advance the definition of "unreasonable searches and
seizures" beyond the confines of the English common law in 1791.

I disagree. If it's unreasonable for a cop to enter your home without
permission, it's equally unreasonable to plant a bug or use infrared
without permission. However should change be required, the way to do
it is with a law or amendment, not judge-made law.

(And it would be pretty easy to defeat infrared searches, a bit of
metal over the walls and it doesn't get out of the house. A few rolls
of aluminum foil would do it, as would metal-backed insulation in the
walls and ceiling.)

It simply says (if I understand
correctly) that you need a warrant to search private homes etc. *

You understand incorrectly. The constitution merely speaks to
*unreasonable* searches and seizures. Searches and seizures with a
probable cause warrant a presumed reasonable but they are not the only
ones which are.

But still, there is no reason to believe that modern technology
changes the definition of unreasonable. The methods, yes, but not the
definition.

That
is any search, be it by physical entry or infrared. *The question is
if it is a search and if so is there probably cause.

Two excellent questions - neither of which is addressed by the 1791
English common law.

The term "search" is pretty well understood, now as it was in 1791.
Nor has the definition of "probable" changed.

In addition the forth amendment
clarified the need to get a warrant based on probable cause.
We can add "probable cause" to the list of constitutional imponderables.
I would like to see a number put on that. *At least 75% probable that
there is evidence etc. there before the warrant is issued. *Of course
that would require teaching some probability to cops and judges.
Just how would you presume to place a number on THAT.
What constitutes "75%" or whatever probability? However would you
compute that?
That's the sort of thing I can have lots of fun with.

But not in any real world situations.

Why can't a lawyer ask, "Officer, you say you had probable cause to
search my client's house. Just how probable was it that you would
find evidence there and how did you determine that probability?"

You do things
like determining witness reliability, or the probability that the tire
tracks at the scene. *Most likely you will have to calculate joint
probabilities.* *Not that difficult to do if you have a bit of
statistical knowledge.

That's not how "prudent and cautious" people operate in the real world.

A court of law is hardly reflective of most of the world.

And probable cause operates on the basis of such individuals, who are,
in almost all instances, NOT statisticians.

You don't have to be a statistician to understand the basic concepts
required for such calculations. In fact modern technology could help
here. It would be simple to produce a computer program to calculate
everything they need, you'd only have to help them understand the
concepts. For most people of average intelligence, a few hours (maybe
4-8) of class time would be more than adequate.

hal lillywhite wrote:

The English common law said THAT?

Nor does it say that cops can't have someone sneak a bug into
someone's home without a warrant.

Thus the need to advance the definition of "unreasonable searches and
seizures" beyond the confines of the English common law in 1791.

I disagree. If it's unreasonable for a cop to enter your home without
permission, it's equally unreasonable to plant a bug or use infrared
without permission.

But, you see, the entry itself is neither a search nor a seizure.

It's the bug which is the search or search.

The infrared camera is not an entry at all - it is merely recording the
emissions coming from the dwelling in any case.

However should change be required, the way to do
it is with a law or amendment, not judge-made law.

The "law" in this case is merely a prohibition against "unreasonable"
searches and seizures. Judges must determine whether or not they are
reasonable in specific cases - after all, you claim this all originates
in "English common law" and what is common law beyond a series of judge
made rulings and determinations?

(And it would be pretty easy to defeat infrared searches, a bit of
metal over the walls and it doesn't get out of the house. A few rolls
of aluminum foil would do it, as would metal-backed insulation in the
walls and ceiling.)

I wonder.

It simply says (if I understand
correctly) that you need a warrant to search private homes etc.

You understand incorrectly. The constitution merely speaks to
*unreasonable* searches and seizures. Searches and seizures with a
probable cause warrant a presumed reasonable but they are not the only
ones which are.

But still, there is no reason to believe that modern technology
changes the definition of unreasonable. The methods, yes, but not the
definition.

Under the English common law, the constable was allowed to stand out
side the dwelling and if he saw (or heard) evidence of a crime through a
window, take appropriate action.

Judges must decide whether doing the same thing with the benefit of an
infrared detector or a sound amplifier is more akin to the constable
standing outside or more akin to an actual entry.

The judges have come down on a "reasonable expectation of privacy"
standard but that is by no means implicit in 1791 common law.

That
is any search, be it by physical entry or infrared. The question is
if it is a search and if so is there probably cause.

Two excellent questions - neither of which is addressed by the 1791
English common law.

The term "search" is pretty well understood, now as it was in 1791.
Nor has the definition of "probable" changed.

I'd dispute both assertions.

In addition the forth amendment
clarified the need to get a warrant based on probable cause.

We can add "probable cause" to the list of constitutional imponderables.

I would like to see a number put on that. At least 75% probable that
there is evidence etc. there before the warrant is issued. Of course
that would require teaching some probability to cops and judges.

Just how would you presume to place a number on THAT.
What constitutes "75%" or whatever probability? However would you
compute that?

That's the sort of thing I can have lots of fun with.

But not in any real world situations.

Why can't a lawyer ask, "Officer, you say you had probable cause to
search my client's house. Just how probable was it that you would
find evidence there and how did you determine that probability?"

The question wouldn't even be allowed.

Note in any case that probable cause relates to the issuance of warrants
and not to searches themselves which must only be not "unreasonable". A
search pursuant to duly issued warrant is prima facie reasonable but all
searches without a warrant are not necessarily unreasonable.

You do things
like determining witness reliability, or the probability that the tire
tracks at the scene. Most likely you will have to calculate joint
probabilities.* Not that difficult to do if you have a bit of
statistical knowledge.

That's not how "prudent and cautious" people operate in the real world.

A court of law is hardly reflective of most of the world.

The courts of law ABOUND in "reasonable man" standards!

And probable cause operates on the basis of such individuals, who are,
in almost all instances, NOT statisticians.

You don't have to be a statistician to understand the basic concepts
required for such calculations. In fact modern technology could help
here. It would be simple to produce a computer program to calculate
everything they need, you'd only have to help them understand the
concepts. For most people of average intelligence, a few hours (maybe
4-8) of class time would be more than adequate.

I fear you rather underestimate the complexity of what you're proposing.

Each case is unique with it's own particular facts and circumstances and
is unlikely to fit into any preconceived computer calculation.


peace and justice,

On Mon, 25 Apr 2011 14:06:28 -0700, Bill Shatzer wrote:

The "law" in this case is merely a prohibition



Speaking of 911...

How can you be such a damned traitor?

xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxx

Bill Shatzer wrote:

And over 4,000 Americans have paid with their lives for that little
adventure. Plus a half a trillion dollars in national treasure
You might compare that with the number of lives lost on 9-11. Or the
economic injury incurred from that event.
It would have been cheaper in both lives and money to just suffer
another 9-11 every six or seven years.
Peace and justice,
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxx

On 4/25/2011 5:24 PM, Jarbidge wrote:
On Mon, 25 Apr 2011 14:06:28 -0700, Bill Shatzer wrote:

The "law" in this case is merely a prohibition



Speaking of 911...

How can you be such a damned traitor?

xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxx

Bill Shatzer wrote:

And over 4,000 Americans have paid with their lives for that little
adventure. Plus a half a trillion dollars in national treasure
You might compare that with the number of lives lost on 9-11. Or the
economic injury incurred from that event.
It would have been cheaper in both lives and money to just suffer
another 9-11 every six or seven years.
Peace and justice,
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxx

Well, with life that cheap, we should be able to murder him and any of
his living relatives and have it of such low an importance as to not
even be worth mentioning!

If my minor complaints would stand in anyones' way, perhaps they would
be best ignored?

Regards,
JS

On Apr 25, 2:06*pm, Bill Shatzer wrote:

But, you see, the entry itself is neither a search nor a seizure.

But entering in search of evidence is. If the cop ain't looking for
evidence, why does he need to enter?

It's the bug which is the search or search.

The infrared camera is not an entry at all - it is merely recording the
emissions coming from the dwelling in any case.

But clearly is seeking evidence if that is how they use it.

....
(And it would be pretty easy to defeat infrared searches, a bit of
metal over the walls and it doesn't get out of the house. *A few rolls
of aluminum foil would do it, as would metal-backed insulation in the
walls and ceiling.)

I wonder.

No need to wonder, talk to any physicist and he'll tell you that metal
blocks IR. That's how a space blanket works. In fact Columbia
Sportswear recently came out with clothing with aluminum dots to
reflect the IR the body generates and thus increase insulation value.

....

Under the English common law, the constable was allowed to stand out
side the dwelling and if he saw (or heard) evidence of a crime through a
window, take appropriate action.

Judges must decide whether doing the same thing with the benefit of an
infrared detector or a sound amplifier is more akin to the constable
standing outside or more akin to an actual entry.

There is a difference between looking through an un-curtained window
and looking through walls that people have every reason to expect are
opaque.

....

Why can't a lawyer ask, "Officer, you say you had probable cause to
search my client's house. *Just how probable was it that you would
find evidence there and how did you determine that probability?"

The question wouldn't even be allowed.

Why? If evidence was obtained by that claim of probability, why
should the defense not be allowed to ask about it?

....

That's not how "prudent and cautious" people operate in the real world.
A court of law is hardly reflective of most of the world.

The courts of law ABOUND in "reasonable man" standards!

And that would exclude probability?

And probable cause operates on the basis of such individuals, who are,
in almost all instances, NOT statisticians.
You don't have to be a statistician to understand the basic concepts
required for such calculations. *In fact modern technology could help
here. *It would be simple to produce a computer program to calculate
everything they need, you'd only have to help them understand the
concepts. *For most people of average intelligence, a few hours (maybe
4-8) of class time would be more than adequate.

I fear you rather underestimate the complexity of what you're proposing.

Each case is unique with it's own particular facts and circumstances and
is unlikely to fit into any preconceived computer calculation.

You make it unnecessarily complicated. All you need is some basic
understanding of probability and the ability to multiply, divide, add
and subtract. Wouldn't even get into square roots except in
extraordinary cases.

hal lillywhite wrote:
On Apr 25, 2:06 pm, Bill Shatzer wrote:

But, you see, the entry itself is neither a search nor a seizure.

But entering in search of evidence is. If the cop ain't looking for
evidence, why does he need to enter?

It's the bug which is the search or seizure.

Still, it's searches and seizures which the constitution addresses.

The infrared camera is not an entry at all - it is merely recording the
emissions coming from the dwelling in any case.

But clearly is seeking evidence if that is how they use it.

They're seeking evidence when they peer through a hole in the fence and
spot a marijuana grow in the back yard.

(And it would be pretty easy to defeat infrared searches, a bit of
metal over the walls and it doesn't get out of the house. A few rolls
of aluminum foil would do it, as would metal-backed insulation in the
walls and ceiling.)

I wonder.

No need to wonder, talk to any physicist and he'll tell you that metal
blocks IR. That's how a space blanket works. In fact Columbia
Sportswear recently came out with clothing with aluminum dots to
reflect the IR the body generates and thus increase insulation value.

What I wondered about was whether a dwelling which emitted no IR at all
would constitute probable cause in its own right. With or without
records of purchases of large amounts of Reynolds Wrap.

Under the English common law, the constable was allowed to stand out
side the dwelling and if he saw (or heard) evidence of a crime through a
window, take appropriate action.

Judges must decide whether doing the same thing with the benefit of an
infrared detector or a sound amplifier is more akin to the constable
standing outside or more akin to an actual entry.

There is a difference between looking through an un-curtained window
and looking through walls that people have every reason to expect are
opaque.

Of course there's a difference.

Which is rather why the judges came up with the concept of "reasonable
expectations of privacy" - a concept nowhere mentioned in the 4th
amendment nor the 1791 common law.

The language of the 4th is not self-defining. Judges must do that.

Why can't a lawyer ask, "Officer, you say you had probable cause to
search my client's house. Just how probable was it that you would
find evidence there and how did you determine that probability?"

The question wouldn't even be allowed.

Why? If evidence was obtained by that claim of probability, why
should the defense not be allowed to ask about it?

Because probability is not the standard, probable cause is.

That's not how "prudent and cautious" people operate in the real world.

A court of law is hardly reflective of most of the world.

The courts of law ABOUND in "reasonable man" standards!

And that would exclude probability?

Pretty much. It's "probable" that the defendant was speeding - after
all, if you clocked 100 vehicles, 80 of them would be exceeding the
speed limit by some amount.

But that is not an allowable inference, even though it's probably correct.

And probable cause operates on the basis of such individuals, who are,
in almost all instances, NOT statisticians.

You don't have to be a statistician to understand the basic concepts
required for such calculations. In fact modern technology could help
here. It would be simple to produce a computer program to calculate
everything they need, you'd only have to help them understand the
concepts. For most people of average intelligence, a few hours (maybe
4-8) of class time would be more than adequate.

I fear you rather underestimate the complexity of what you're proposing.

Each case is unique with it's own particular facts and circumstances and
is unlikely to fit into any preconceived computer calculation.

You make it unnecessarily complicated. All you need is some basic
understanding of probability and the ability to multiply, divide, add
and subtract. Wouldn't even get into square roots except in
extraordinary cases.

The difficulty is in assigning a numerical value to such things to even
begin the statistical calculation.

A cop observes two men. One hands the other a small package. The other
returns an envelope. What is the probability that the cop has just
witnessed a drug sale?

Does it make a difference as to whether the cop was on the corner of
Couch and 4th as opposed to the dining room of the Glendoveer Country
Club? Did the cop observe furtive glances prior to the exchange? What
exactly is a furtive glance? Does the time of day make a difference?
What if the cop recognizes one of the men as a convicted drug user? Or
as the Mayor? I'm sure you can come up with at least a half dozen other
possible variables.

Plug in the appropriate values and crank up your computer.

GIGO.

peace and justice,

On Apr 25, 10:33*pm, Bill Shatzer wrote:
hal lillywhite wrote:

It's the bug which is the search or seizure.

Still, it's searches and seizures which the constitution addresses.

Agreed and it is rather clear when a cop is searching or seizing.

The infrared camera is not an entry at all - it is merely recording the
emissions coming from the dwelling in any case.
But clearly is seeking evidence if that is how they use it.

They're seeking evidence when they peer through a hole in the fence and
spot a marijuana grow in the back yard.

But there's rather more expectation of privacy inside a house than in
a yard.

(And it would be pretty easy to defeat infrared searches, a bit of
metal over the walls and it doesn't get out of the house. *A few rolls
of aluminum foil would do it, as would metal-backed insulation in the
walls and ceiling.)
I wonder.
No need to wonder, talk to any physicist and he'll tell you that metal
blocks IR. *That's how a space blanket works. *In fact Columbia
Sportswear recently came out with clothing with aluminum dots to
reflect the IR the body generates and thus increase insulation value.

What I wondered about was whether a dwelling which emitted no IR at all
would constitute probable cause in its own right. With or without
records of purchases of large amounts of Reynolds Wrap.

The building is gonna emit IR but with the metal blocking that IR will
be very diffuse and not show images, hence not useful for evidence.
However metal-backed insulation is available so there's no reason not
to think that wasn't used in the house. As for large quantities of
Reynolds Wrap, just looked at our roll which contained 200 square
feet. It would only take a few of those to block off the walls toward
the street, not enough to arouse suspicion at the grocery store.

And why would it be suspicious for someone to block the IR from their
home? As IR imagers become more available I can see that someone
would want to make sure that local peeping Tom couldn't watch them on
the toilet or while making love.

....

There is a difference between looking through an un-curtained window
and looking through walls that people have every reason to expect are
opaque.

Of course there's a difference.

Which is rather why the judges came up with the concept of "reasonable
expectations of privacy" - a concept nowhere mentioned in the 4th
amendment nor the 1791 common law.

But "probable cause" implies that it must be reasonable.

The language of the 4th is not self-defining. Judges must do that.

Why can't a lawyer ask, "Officer, you say you had probable cause to
search my client's house. *Just how probable was it that you would
find evidence there and how did you determine that probability?"
The question wouldn't even be allowed.
Why? *If evidence was obtained by that claim of probability, why
should the defense not be allowed to ask about it?

Because probability is not the standard, probable cause is.

How do you define probable? How do you know it is probable? What
you've described is an invitation to chaos with one judge accepting
most anything as probable cause while another has high standards. If
we put some standards on it then at least the cop would have an idea
of what he needs to demonstrate to get a warrant.

That's not how "prudent and cautious" people operate in the real world.
A court of law is hardly reflective of most of the world.
The courts of law ABOUND in "reasonable man" standards!
And that would exclude probability?

Pretty much. It's "probable" that the defendant was speeding - after
all, if you clocked 100 vehicles, 80 of them would be exceeding the
speed limit by some amount.

But that is not an allowable inference, even though it's probably correct..

But it is, I believe, allowable as reason to gather more evidence
such as put a cop with a radar gun on that highway. You can't convict
on 80% probability but you can get more evidence, raise the
probability to near 100% and then convict.

....


The difficulty is in assigning a numerical value to such things to even
begin the statistical calculation.

A cop observes two men. One hands the other a small package. The other
returns an envelope. What is the probability that the cop has just
witnessed a drug sale?

Does it make a difference as to whether the cop was on the corner of
Couch and 4th as opposed to the dining room of the Glendoveer Country
Club? Did the cop observe furtive glances prior to the exchange? What
exactly is a furtive glance? Does the time of day make a difference?
What if the cop recognizes one of the men as a convicted drug user? Or
as the Mayor? *I'm sure you can come up with at least a half dozen other
possible variables.

Statistics can *easily* include all those factors, even the cop's
experience and how it affects his right brain recognition.

Plug in the appropriate values and crank up your computer.

GIGO.

And there's no GIGO in the current system? No cops or judges with
biases? However if probability is correctly applied it will eliminate
GIGO. Any statistician will tell you that you have to have good data
for the statistics to be meaningful. How often are drug deals known
to happen at Couch and 4th? What's the recidivism rate of drug
dealers? Is the guy handing the mayor an envelope going to benefit if
he bribes that mayor? Probability calculation can handle all that
quite easily if given the correct data. However without that correct
data *nobody* is likely to be very accurate.

hal lillywhite wrote:

On Apr 25, 10:33 pm, Bill Shatzer wrote:

hal lillywhite wrote:


It's the bug which is the search or seizure.

Still, it's searches and seizures which the constitution addresses.


Agreed and it is rather clear when a cop is searching or seizing.


The infrared camera is not an entry at all - it is merely recording the
emissions coming from the dwelling in any case.

But clearly is seeking evidence if that is how they use it.

They're seeking evidence when they peer through a hole in the fence and
spot a marijuana grow in the back yard.

But there's rather more expectation of privacy inside a house than in
a yard.

And thus JUDGES have come up with the "reasonable expectation of
privacy" criterion - a standard which does not appear in the 4th
amendment nor in the 1791 English common law.

peace and justice,