I must be slipping. 🙂

How about reforming 1983 to provide massive civil liabilty? Treble damages, no qualified immunity defense, etc. etc.

Consider a case where an officer turns up evidence linking a suspect with a violent crime (ski masks, bags of money, and map from a local bank to a remote hideout, for instance, or perhaps something linking the suspect to a local rapist) during a justified Terry search. What should be done with that evidence?

I know, at some point the court does have to draw a line. And, I realize that sometimes the line will seem ridiculous. This is where attorneys make lots of money. I believe the Supreme Court tried to not shut off using evidence that turns up during a Terry search because it recognized that some cases exist where such evidence really ought to be permissible in court and not just for Grand Juries.

The current line, of course, is whether the police officer feels threatened. And, of course, that is being abused. But the abuse isn’t in what can be brought up in court, it’s in the search itself. (Imagine a law permitting police to stop and search anyone, so long as nothing found can be used in court). And I can’t think of a way to give police meaningful authority while guaranteeing that the authority will never be abused.

The terry search process is so widely and blatantly abused as a tool of the drug war, so far beyond its supposed original purpose of keeping officer’s safe that the proposal you mention seems not only wise but absolutely necessary.

/* Seems the court tried to lay out a narrow exception [in permitting Terry searches], understanding fully that a search, any search, is a real violation. It’s not unreasonable for a police officer to not get blown away by some punk with a gun, and the court allowed limited (still intrusive) searches to prevent this.
*/

I agree. The Constitution prohibits all unreasonable searches and seizures, but that doesn’t mean all searches must have a warrant (but when the law requires a warrant, then the Constitution puts out certain minimum requirements).

/* (Have there ever been studies of how often, in encounters between police and citizens, a Terry search is made? How often a weapon, but no other contraband, is found? How often contraband, but no weapon is found? How often both, or neither, are found?)
*/

This is an interesting question. I have never heard of such research. I understand that police have an incredible amount of paperwork that must be filled out with any enforcement activity (such as a traffic stop), so the data should exist for this kind of study.

/* Anyway, the Terry search was incidental to the legalities of my arrest. The officer who first stopped me insisted, when I asked him why he’d stopped me, that he could stop me and ask for my ID whenever he wanted.
*/

I believe this is governed by state law. When I was a rebellious high school student, I skipped school one day, and was turned in by a mall employee (I really didn’t look all that old, so going to the mall was something of a giveaway). The school I went to had a cop assigned to it, and he came to pick me up. I asked how he could determine who I was, since I may not have a drivers license, and he responded that California had a law that I could be punished (fined, etc.) for “failure to identify.” I don’t know the specifics of the law, or where it comes from, but it sounds like something of a limited search without warrant when the officer’s judgement justifies it.

Is it a just law? Well, that depends on the circumstances, doesn’t it? And abuse of such a law will occur, no matter how narrowly tailored it is.

/* Given that the Terry search is supposed to be a limited search for weapons, apply the exclusionary rule to anything found in the course of a Terry search which is not a weapon. (Why the Supreme Court didn’t do this, I don’t know, but they should have.)
*/

I believe the reason was that the Court recognized that a cop searching for weapons (out of fear for his life), shouldn’t be required to pretend that he didn’t see the bag of crack cocaine that also turned up. Or could the crack be submitted as “probable cause” to get a warrant for a repear search? If so, what’s the difference? If not, then could the crack be admitted in court at all? If the crack can’t be admitted as evidence, the criminal may only get a weapons charge (and possibly only a “carrying a concealed weapon without a permit”) because there wouldn’t be a related crime (possession) to link it to.

/* The Terry search could still be used for harrassment,
*/

Exactly. I can’t think of a way to define search authority down to such a narrow tool that it could still be effective. Yes, I know it is better for a guilty person to go free than for an innocent one to be jailed, but I believe we need to limit the number of guilty people going free as well. So, yes, the question is something of how to limit the authority so that inevitable abuses aren’t horrible, and at the same time the authority is still useful.

So instead, I’ll concede a few points (or at least point to where we agree) (two posts because of length):

PrivacyHound:

/* I�m no IP expert, but I�d say the case is about the phrase all together.
*/

I agree. I think the phrase itself isn’t enough to claim confusion, but there may be information not presented in the article.

/* I never said that the parody was seized because of bush.
*/

I appologize. I understood the claim that the seizure was a violation of free speech to mean that the item was seized due to content, and on orders by Bush.

/* As for the IP seizures over 5 years, I’m fairly sure that DHS/Customs counts a $5 “Rolux” as a $2,995 seizure. I really doubt that $5 dollar street corner watches displace any Rolex sales.
*/

That’s true. One of the earliest cases of international trademark infingement (Steele vs. Bulova) had very little to do with free-riding or trademark dillution. Of course, as far as I can tell, it wasn’t a criminal case. I would like more information on the Magic Cube case, since from where I stand, it’s looking less like a criminal case as well.

/* In this case, the abuse of power is written into the law and the abusers are not necessarily in violation of the law.
*/

I agree that when the law is overbroad, then abuse of authority will always occur. I simply don’t believe that we can give police meaningful authority, while determining every case where that authority must be curtailed. Imagine a police officer making a traffic stop and running through a 50-page checklist to determine what exact authority he has on that particular traffic stop!

When you say “our general hope that police deal with people less trustworthy than themselves”, I stand instead with George Bernard Shaw, whose Lord Summerhays said (speaking, I believe, for Shaw), “Anarchism is a game at which the police can beat you.”

Now, I’d never read Terry vs. Ohio before. It makes for interesting reading–and I wish Douglas had written a more substantive dissent!

Seems the court tried to lay out a narrow exception, understanding fully that a search, any search, is a real violation. It’s not unreasonable for a police officer to not get blown away by some punk with a gun, and the court allowed limited (still intrusive) searches to prevent this.

What I think the court failed to do was understand that the difference between the “good faith” of the officer, which they correctly rejected as subjective, and the standard it set, “specific reasonable inferences which [the police officer] is entitled to draw from the facts in light of his experience” is, in practice, pretty thin. As you say, people hope the police officer is more trustworthy than those he stops–thus it’s a rare person who would not nod when a police officer says, “I searched that man because I felt threatened.”

(Have there ever been studies of how often, in encounters between police and citizens, a Terry search is made? How often a weapon, but no other contraband, is found? How often contraband, but no weapon is found? How often both, or neither, are found?)

Anyway, the Terry search was incidental to the legalities of my arrest. The officer who first stopped me insisted, when I asked him why he’d stopped me, that he could stop me and ask for my ID whenever he wanted. I made a point of repeatedly telling him that, although he couldn’t stop me for no reason, I’d gladly show him my ID if he’d give me a reason for stopping me. He refused, as did the rest of the officers with whom I interacted that night. I was on the verge of giving in and showing my ID when the Terry search took place.

Really, that’s what tore it. It’s one thing to frisk me for weapons–it was in our mutual best interest that they knew for a fact I was unarmed. It was another thing altogether to take a couple of sheets of paper, folded in quarters, out of my back pocket and look through them for my name.

That’s not a search for weapons. In my opinion, few Terry searches are.

Again, how does one develop respect for the rule of law when the law can’t rule itself?

Anyway, I think after reading the Terry decision, your observation about grand juries isn’t really on point.

To the court, the Terry search was a limited search for weapons, but in practice, as the author (Peter Moskos, “a former Baltimore police officer, [now a] professor of law and police science at John Jay College of Criminal Justice in New York”) says in the op-ed I linked above:

Police officers are experts at bending rules, particularly in the “war on drugs.” As a police officer, I was taught to push the rules of the “Terry search,” which meant that if I articulated fear that a suspect might harm me, I could legally frisk suspects for weapons without probable cause. I know officers who towed cars, again legally, simply so they could “inventory” the contents (technically for safekeeping). In both cases, the real goal was to find illegal drugs and make an arrest.

One must expect law enforcement to use all its available tools. As a law enforcement officer, why deal with the tedious process of probable cause, judicial approval and paperwork?

Over the years–I remember the day it started–on the subject of rule of law I’ve come to sound like a reformed drunk preaching abstinence. Still, what does this approach do for respect for rule of law, both in citizens and, perhaps more importantly, in police, prosecutors, and judges?

What can be done?

Given that the Terry search is supposed to be a limited search for weapons, apply the exclusionary rule to anything found in the course of a Terry search which is not a weapon. (Why the Supreme Court didn’t do this, I don’t know, but they should have.) The Terry search could still be used for harrassment, which could still be effective in the case of people carrying large amounts of expensive contraband (and such material gathered could still go to the Grand Jury you postulate), but would no longer be a way to get quota arrests of non-dangerous people.

That still doesn’t meet my standards–it’s still say one thing and do another–but I could live with it. It keeps the bending of the law out of the court system and at street level, and gives the policeman a small handicap in playing the game of anarchism.

/* When the government starts seizing legitimate free speech (the parody [of Bush], … not the cube) using IP as an excuse we should all worry. */[/quote]

You’ll note that I didn’t claim the cube was speech in my post, only the parody.

[quote]
/* In the case of the Magic Cube, the dispute was over whether �Magic Cube� infringed on the trademark �Rubik�s Cube�.� Personally I would not confuse the two. It is a cube, darn it, and there are only so many ways to say �cube.� */

I haven’t seen the package, so I can’t say how likely it is I’d be confused. I think the issue isn’t over “cube,” but “magic” vs. “Rubik’s.” You’ll notice that the words are similar. If the packaging were also similar, you would have a potential for confusion. [/quote]

I�m no IP expert, but I�d say the case is about the phrase all together. A �Magic Puzzle,� for instance, couldn�t be considered the same as a �Rubic�s Cube.� The fact that we are arguing over it shows that it is not the kind of clear cut case that would warrant a seizure without a court order.

[quote]Is there any reason to believe that the parody was seized because it was a parody of Bush? There have been nearly $400 million of “IP” seized over the last five years. [/quote]

I never said that the parody was seized because of bush. As for the IP seizures over 5 years, I’m fairly sure that DHS/Customs counts a $5 “Rolux” as a $2,995 seizure. I really doubt that $5 dollar street corner watches displace any Rolex sales. There might be some degrading of the brand, but not at a one to one ratio.

I also disagree with your premise that the abuse of power requires the finding of individual rouge abusers. In this case, the abuse of power is written into the law and the abusers are not necessarily in violation of the law. Thus, the solution is to not have laws that grant such overbroad power.

/* Once an item has cleared customs, customs has no business seizing property. If the items are infringing, then civil proceedings should be implemented.
*/

What if the item doesn’t go through Customs originally? I don’t know the facts of this case. However, I doubt that Customs agents could sign off on items as they cross the border, and then seize those same items after the’re in stores.

/* In the case of the Magic Cube, the dispute was over whether �Magic Cube� infringed on the trademark �Rubik�s Cube�.� Personally I would not confuse the two. It is a cube, darn it, and there are only so many ways to say �cube.�
*/

I haven’t seen the package, so I can’t say how likely it is I’d be confused. I think the issue isn’t over “cube,” but “magic” vs. “Rubik’s.” You’ll notice that the words are similar. If the packaging were also similar, you would have a potential for confusion.

/* Clearly this is a matter for the courts to decide
*/

Exactly. I wish the company marketing Magic Cube the best, since I support a healthy market, which includes viable competition.

/* … pre-emptive seizures are a frightening prior restraint on speech and conduct carried out by our new IP Gestapo.
*/

Except that such seizures (1) aren’t new, and (2) aren’t about speech (they’re about trade).

/* When the government starts seizing legitimate free speech (the parody [of Bush], … not the cube) using IP as an excuse we should all worry.
*/

Is there any reason to believe that the parody was seized because it was a parody of Bush? There have been nearly $400 million of “IP” seized over the last five years. That’s quite a list. Why should I believe that “Richie Bush” was targetted by Bush, when it could simply be a single item on a very large list. I’d bet that religious books were also on that list. Should I believe that Bush called Ridge and said, “Ridge, I’m a little worried about the amount of pirated religious material entering the country; please do something about it”?