Before Terry, did the Fourth Amendment require a warrant for all searches and seizures or only the &quot;unreasonable&quot; ones? I'm trying to understand the direct meaning of the Fourth Amendment as best as possible. The Amendment states the following (emphasis added): 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. Is the statement that warrants require probable cause limited to the context of &quot;unreasonable&quot; searches and seizures, or was the idea that all searches and seizures, reasonable or otherwise, require a warrant? And in case Supreme Court precedent made the answer time-specific, I'm asking specifically how the Amendment would have been understood before Terry v. Ohio, as I want to know, as best as possible, which interpretation was originally held. Before Terry, did only &quot;unreasonable&quot; searches or seizures require a warrant?
was the idea that all searches and seizures, reasonable or otherwise, require a warrant? No. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. This means that unreasonable searches are prohibited. A prohibited search can't require a warrant because the search is prohibited. If a warrant was issued for an unreasonable search then the warrant was issued in error.
In your example, there is nothing that indicates to me that there is a "particularized and objective basis for suspecting the particular person stopped of . . . criminal activity". If you have described the totalilty of the circumstances, the officer does not have the right to arrest or detain the individual. To your broader question about how specific descriptions must be in order to provide a basis for a stop, the assessment is based on the "totality of the circumstances". For example, an anonymous tip that "a woman would drive from a particular apartment building to a particular motel in a brown Plymouth station wagon with a broken right tail light [carrying cocaine]" was enough to warrant a stop. Alabama v. White, 496 U.S. 325 (1990)1 In contrast, the court "determined that no reasonable suspicion arose from a bare-bones tip that a young black male in a plaid shirt standing at a bus stop was carrying a gun." Florida v. J. L., 529 U. S. 266 (2000) The “reasonable suspicion” necessary to justify such a stop “is dependent upon both the content of information possessed by police and its degree of reliability.” Navarette v. California 572 U.S. ___ (2014) In any case, a crime must be part of the particularized suspicion. 1. This case focused on the indicia of reliability necessary for an anonymous tip to support a reasonable suspicion, but it is also an example of a degree of non-specificity in identification of a suspect.
There is no hard rule that a strip search cannot be performed by a different-gendered officer. The hard rule is that the search must be reasonable (as required by the 4th Amendment) , which means that there have to be sufficient reasons for the search. Depending on the circumstances, a search of a male by a female, or in view of a female, could be reasonable – and in other circumstances it could be unreasonable. As the court in Cookish v. Powell, 945 F. 2d 441 said, In each case it requires a balancing of the need for the particular search against the invasion of personal rights that the search entails. Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted There are trends in the law which speak in favor of inmates right to privacy from cross-gender strip searches. Byrd v. Maricopa County Board of Supervisors is a recent decision where given the circumstances, a cross-gender search was found to be unreasonable. Cookish v. Powell is one where it wasn't unreasonable. This resource file assembles numerous court rulings, classifying them for judicial circuit, gender of staff vs. gender of inmate, sorting according to who prevails. The "rule" would be that the more intrusive the staff conduct is, the less reasonable the search is: but the more of an emergency there is, the more reasonable the search is.
I suspect that you would not be convicted in the present case, because the jury would be sympathetic to the plight of the person being dragged out and unsympathetic to the behavior of the draggers. However, we should set aside the emotional elements of a jury trial and focus on legal principles. The basic question is whether a person has the right to use force to defend against an unlawful battery: "a person is privileged to use such force as reasonably appears necessary to defend him or herself against an apparent threat of unlawful and immediate violence from another". This right to defense also extends to defense of others. But it has to appear to be to unlawful, which is to say, you have to reasonably believe that the force used against the victim is unlawful. If a couple of thugs try to drag a person away, then an observer probably has a reasonable belief that this is an unlawful battery. But if a couple of police officers are observed dragging a person away (arresting him), apparently acting officially, the force used (up to a point) is apparently lawful and would not constitute battery of the victim. For defensive force against police to be lawful, the forced used by the police must be excessive. The outcome then depends on what a reasonable person would conclude (this is where the jury or judge makes a rather subjective decision). If a reasonable person would conclude that the assailants are acting lawfully in arresting the person, then a higher bar must be clear to justifiably use force in defense of others. Wearing a jacket that says "Police" favors the "appears lawful" side (though if you happened to know for a fact that the person wearing the jacket is not a police officer, then the "police exception" would not be applicable). In the relevant case, the facts point to the appearance of a lawful arrest (even if were to turn out to be judged unlawful). In the case that this is an apparent arrest, it would have to be the case that a reasonable person would find the force used to be excessive. Generally speaking, force used by officers is held to be reasonable, except in some cases where it is not. See for example the matter of Eric Garner, where the officers involved were not indicted. On the third hand, in this case, it might matter what the actual legal status of the "officers" is (they are not Chicago police).
In most cases, the failure to use Robert's Rules of Order will not be a violation of due process. To be a violation, (1) due process must be required; and (2) the procedure must either (a) fail to satisfy the elements of due process (notice and a hearing); or (b) be inadequate. Was due process required? As a threshold matter, the Fifth Amendment provides due-process protection only when you are going to be &quot;deprived of life, liberty, or property.&quot; The vast majority of government action comes and goes without anyone being deprived of any legally cognizable life, liberty or property interest. This would probably include votes to approve a budget, name a street, designate a holiday, and so on. In those cases, no one is entitled to due process under the Fifth Amendment. Was due process provided? But the government often does implicate those interests, in matters across the spectrum of seriousness, from imposing the death penalty to imposing jail time to seizing property to handing out parking tickets. Determining whether the Fifth Amendment is satisfied involves two tests. First, you'll look to see whether the basic elements of due process are satisfied. That means looking for (1) notice of the decision to be made; and (2) an opportunity for the affected person to make their case; (3) before a neutral decision-maker. In the absence of those elements, there is no due process. Was the procedure adequate? But even when those elements are present, the process may still be &quot;inadequate,&quot; as you're suggesting the committee procedures are here. When the government provides procedural protections, they must be &quot;tailored, in light of the decision to be made, to the capacities and circumstances of those who are to be heard.” Mathews v. Eldridge, 424 U.S. 319, 349 (1976). You've suggested that Robert's Rules would be the appropriate way to provide due process. Under Eldridge, a court would determine whether that additional safeguard (or any other) was required by balancing three considerations: &quot;First, the private interest that will be affected by the official action.&quot; Is the government trying to take your home and sell it to developers or is it holding your car until you pay off your parking tickets? It's not clear what kind of committee you're imagining, but the greater deprivation it can work, the greater greater protections it must provide. &quot;Second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards.&quot; Is there any objective evidence that the current system is getting the wrong results? Is there any reason to think that the proposed change would result in more accurate decisions? If there's some reason to think that Robert's Rules is going to result in better decisions, it's more likely to be required. If it's not, don't expect a court to require it. I'd argue that this is the most important part of the test. &quot;Finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.&quot; How important is the objective the government is trying to achieve? Ensuring public health and safety are toward the top of the list, so the government will get a little more leeway in determining how to handle them. Fining people for letting their grass get too tall is less important, so the government isn't going to be given as much license to screw around. Then, given the importance of those functions, this basically becomes a test for practicality. Would the proposed change impose serious administrative burdens? Would it be cost-prohibitve? You can impose Robert's Rules probably for nothing more than the cost of a copy of the book, but properly applied, it's an incredibly complex process that imposes serious administrative burdens. Without knowing what kind of committee action you're talking about, it's hard to say how these rules would apply, but I'm comfortable guessing that Robert's Rules would not be required. But assuming that the committee has the power to work some kind of deprivation of life, liberty or property, it probably would be a due-process problem if they had no rules of order whatsoever. This was sort of the same problem that arose in CNN v. Trump just last month.
canada It depends on the right. See Quebec (Attorney General) v. 9147-0732 Québec inc., 2020 SCC 32: To claim protection under the Charter, a corporation ⸺ indeed, any claimant ⸺ must establish that &quot;it has an interest falling within the scope of the guarantee, and one which accords with the purpose of that provision.&quot; Regarding section 12 (right to be free from cruel and unusual treatment or punishment): the text “cruel and unusual” denotes protection that “only human beings can enjoy” Regarding section 7 (right not to be deprived of life, liberty, or security of the person other than in accordance with principles of fundamental justice): A plain, common sense reading of the phrase “Everyone has the right to life, liberty and security of the person” serves to underline the human element involved; only human beings can enjoy these rights. But, regarding section 8 (right to be free from unreasonable search or seizure): the Court accepted, without discussion or explanation, that the s. 8 right to be secure against unreasonable search or seizure could apply to corporations. And section 11(b): the Court extended the s. 11(b) right to be tried within a reasonable time to corporations on the basis that any accused, corporate or human, has, as Stevenson J. said, “a legitimate interest in being tried within a reasonable time”
The problem with Solution 2 is that government officials in the United States enjoy qualified immunity with respect to actions that they did while acting under color of law. It's not total immunity, but if they do things by the book, they cannot be prosecuted even if something goes wrong (even when doing things by the book, Police deal in very volatile situations and things can still go wrong because of an X factor to specific for the training manual to cover.). In other cases, it may be because multiple officers are working the scene and Office A lied to Officer B about the situation. Consider Officer A pulls over a suspect and realizes it was someone who was suspected of a crime, but couldn't prove it. He calls for back up and Officer B arrives. Upon arriving on scene, Officer A tells B to search the trunk of the car despite the fact that A had not received consent from the suspect nor has a warrant, nor cause to make a search of a trunk of a vehicle. B makes the search and finds [the bloody knife/the stash of drugs/the smoking gun/the match to a child's shoe that was missing from the kidnapping scene/ insert other incriminating evidence]. Under system (2), since it was Officer B who made the illegal search, B would be liable for it, even though Officer A lied about having legal reason for a search of the trunk space. But what's more... if the evidence is gonna be used anyway, what's to stop the cops doing it again? After all, there is very little recourse for those who are illegally searched to contest this in court (If I'm illegally searched and don't have anything on me, I have to take this to civil court, which is a different animal than Criminal Court and exposes me to broader Discovery... aka gives the cops free reign to search my property for a hell of a lot more illegal things.) or just sit back and count my 4th amendment rights (the section of the constitution protecting against unwarranted search and seizures) as worth less than the paper they're printed on. Oh, and by the way... that second word seizure... that means that they will be taking my property (or myself if they arrest me) and will not be giving it back for some time while they process it... if it's a legal to hold item (like my laptop that I do work on) that's going to make it harder for me to do my job which injures me further in lost business and income. In other cases, it could be they have a warrant for a large item (a stolen big screen tv) and while searching for it, open my sugar bowel and find evidence of a crime unrelated to theft of the television (i.e. opening a baggie of weed). This is actually an illegal search because, unless I am a wizard, a Time Lord, or Mary Poppins, there is no reason why a container smaller than a big screen TV should ever be searched when looking for a Big Screen TV and the cops should logically see this as out of bounds of the search warrant. The nature of this is damaging before the legality of the search can be determined, and because the search may have been out of scope of the warrant that was otherwise justified, the rule of making the evidence of a crime inadmissible was held in order to prevent LEOs from doing this because they could. This rule also started to take formation prior to the Revolutionary War. British Law had ruled against compelled confessions being inadmissible as evidence in 1769, a full six years before the Revolutionary war started (1775) and seven years before the publication of the Declaration of Independence (1776). Now there are some exceptions that can get the evidence brought back in, such as plain view (&quot;The suspect's vehicle is a pick up truck with an open bed, the murder weapon was lying in the bed covered in blood&quot;), inevitable discovery (&quot;We have developed evidence by other means that would have lead us to this evidence legally&quot;) and Exigent Circumstances (&quot;We believed someone inside the property was in grave danger if we did not enter the property immediately and that's when we found a cache of stolen Big Screen TVs!) and Good Faith (the Warrant was authorized for the wrong street address of the target but we found the evidence of an unrelated crime in a place the warrant authorized us to search. Everything but the goofed up address was done by the book.).
In that case, Cruise-Gulyas was subject to a second stop, and the court found that the second stop was an illegal seizure. There is no qualified immunity since this was an exercise of a clearly established First Amendment right. The authority to seize her ended when the first stop ended. The finger is not a basis for a stop, since it does not violate any law ("This ancient gesture of insult is not the basis for a reasonable suspicion of a traffic violation or impending criminal activity", Swartz v. Insogna, 704 F.3d 105.