Democrats need Brain Scanned
Where are all the Democrats who complained that everything President Bush did to keep America safe was unconstitutional? Obama and the Democrats complained that wiretapping a suspected terrorist was unconstitutional. They complained water-boarding a terrorist for critical information that we now know saved American lives was, in their opinion, unconstitutional. They complained terrorists should have the same rights as an American citizen in our courts and that Guantanamo Bay Prison should be closed. They complained it is unconstitutional to ask criminals for proof of citizenship and that no one should be asked to show proof when voting. However, the Democrats now claim it is legal to violate the 4th Amendment to our US Constitution of unreasonable searches and force each American citizen to go through a body scanner at the airport. Little do these people know that a neurosurgeon stated that the radiation from the scanner increases the likelihood of cancer and other diseases; but our government feels it is alright to subject innocent Americans to our government looking at nude images or touching private areas of the elderly, nuns, and even three year old boys and girls. The last time I checked, there is no one doing a groin check at the border while millions of illegal immigrants walk the streets of America. No one knows who or how many may be involved in terrorist activities; but ignore federal laws to protect our border for the safety of the American people.
Our government has been intrusive on our law abiding citizens in the name of being politically correct. We know the profile of what the terrorist look like; but we do not want to single these people out. We should single each person that fits that profile as well as individuals or families that act or are involved in suspicious activities. I personally would have no problem and nothing to hide if the government were to want to listen in on my phone call or search me prior to getting on an airplane ~ if ~ they had reasonable suspicions about me, such as when I had to buy a last minute plane ticket once.
However, our government elite always give themselves exemptions. They do not feel they need to go through the same body scanner, take Social Security, or take the government run health care that will be imposed on each American citizen. That is because our government elite has given themselves special clearance, their own retirement and medical that “we the people” should not have. The Democrats believe Obama is our savior so we must accept everything he tells us as constitutional and what President Bush did to protect America as unconstitutional. I, therefore, have determined, the American people do not need to have their body scanned, it is the Democrats that need to have their brain scanned.
Frank Aquila is a Manteca resident and president of the South San Joaquin Republicans. He can be emailed at mantecarepublicans@yahoo.com
November 25, 2010
Democrats need Brain Scanned
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Frank Aquila's Blog 
While I agree with about 99% of what Frank said, his assertion that the airport searches are a Fourth Amendment violation is just wrong. It’s not even a close call. I can understand Frank’s thinking it so,though….. even Judge Andrew Napolitano routinely refers to it as a Fourth Amendment violation. The good Judge is wrong when he makes that assertion (and he knows it perfectly well… but admitting it would majorly hinder his diatribe), and here’s why…..
The reason is that there is no Constitutional right to fly, and the persons doing the searching are not ‘detaining’ (which has a legal meaning). You can opt out at any time, or refuse to submit in the first place. They just won’t let you get on the plane if you do that, but you are not otherwise hindered, delayed, detained, persecuted, cited, or prosecuted. There is NO requirement that you submit to the search. Submitting to the search is therefore in every legal sense a voluntary submission (consent) to being searched, and consent searches are one of the acknowledged and storied exceptions to the Fourth Amendment.
You may have noticed (if you have ever had the misfortune to be detained and patted down by a police officer) that they invariably ask you something to the effect of “you don’t mind if I pat you for weapons, do you?” as they start to do so. This is not just to let you know they are doing it (so you don’t react in some untoward manner as they start to do so), but also because if you don’t object and they find something, it will most likely be deemed admissable in court, because the search effectively became a consent search when you didn’t respond in the negative after being asked the question.
Bottom line….. while the searches are offensive to many, ineffective in stopping the worst threats, and in reality amount to not much more than just another piece of personal freedom and dignity being taken by an overly expansive and overly controlling federal government… they are most decidedly NOT unconstitutional, nor a violation of the search and the seizure protections of the Fourth Amendment.
As to Frank’s question regarding why the left is no longer protesting government intrusions into our lives….. he’s right. they’re hypocrites of the first order on that score.
Comment by Devon Stavrowsky — November 27, 2010 @ 5:12 am |
After posting this I got to thinking about it, and there are a couple of other reasons why the searches are legal. In addition to the consent exception to the Fourth Amendment, there is also a lesser known exception which amounts to “a search absent a warrant is a legal search when the primary purpose of the search is related to an abiding public safety issue.” This doesn’t mean evidence obtained in such a search is inadmissible (it may or may not be… but most likely will be admissible), it just means that the searching officer has to articulate his reason for believing there was an overarching public safety issue at hand, and the judge making the determination on admissibility of evidence would have to decide if he agreed.
An example would be if a armed robber took a room full of hostages, and later decided to surrender, didn’t have his gun when he came out, and nobody among the hostages seemed to know where it went. I guarantee you every hostage would be searched, and each such search would be a legal search. No warrant would be required. This sort of thing is well-established case law, decided decades ago. In the TSA case, the abiding public safety issue is the possibility of a terrorist act involving a plane, coupled with the fundamental difficulty in addressing the problem satisfactorily once an armed terrorist is airborne.
Also, it should be noted when Bush was data-mining overseas calls (NOT wire-tapping by the way), and the leftists screamed their rights were being violated, Attorney General Ashcroft pointed out (and quite correctly) that even if they had been tapping lines, it wouldn’t have been illegal, because the purpose was not to gather evidence for prosecution, but rather just to obtain intelligence so as to be able to stop the next attack.
The penalty for gathering evidence in an illegal search is loss of the evidence for prosecutorial purposes. It only becomes a civil rights violation (and therefore a crime) if it is done with malicious intent or willful disregard for the subject’s rights for purposes not related to the public welfare.
If the reason for the search is not deemed to involve malicious intent or willful disregard for the citizen’s rights without articulable good cause, there is technically no crime in conducting the search. You just, at worst, wouldn’t be able to use any evidence gained in a prosecution. It’s ugly, and seems “unfair”, but there is a big difference between unfair and illegal.
If a judge did, in fact, deem the search “illegal” (i.e. evidence obtained is not admissible), the same would be true for any evidence derived as a direct result of evidence obtained in the “illegal” search. If you can say “This wouldn’t have been known if the search had never been performed”, the evidence cannot be admitted to prosecution. This is known in legal circles as the “Fruit of the poisonous tree” doctrine. You may have heard it referred-to recently in newstalk discussions of some of the GITMO prosecutions, where said doctrine came into play regarding information obtained through enhanced interrogation. That doesn’t mean the officers are subject to prosecution for having performed the search under those circumstances. You just could not use their evidence to prosecute.
Lastly, I’ve seen folks compare these searches to DUI arrests, and say the fact that driving involves acquiescence to the implied consent law doesn’t mean the officer doesn’t have to have probable cause to stop you initially. That’s a bad analogy. The more correct one would be the DUI check point… where everyone coming through gets checked to see if they have been drinking. You will notice that when they do one of those, they ALWAYS post signs well enough ahead that anyone coming through can choose to turn off and take another route if they wish to, and most agencies also post it in the local paper a week in advance that they are going to be running one, during what hours, and at what location (ergo – everyone coming through knew or SHOULD REASONABLY HAVE KNOWN that they were going to be “searched”). The reason for these acts is so that nobody arrested can argue in court that the “search” that determined they were DUI was improper because there was no probable cause to have stopped them. They try. But they always lose, because they knew the search was coming, so going ahead through the checkpoint is deemed implied consent. Passengers know the search is coming, so going ahead through the checkpoint is deemed implied consent. They don’t, after all, have to fly, nor even have a Constitutional right to do so.
I spent 25 years in law enforcement, and one of the things I learned is that if you are going to interact with people in a manner which they find offensive, or intrusive, or restrictive, you’d better do it right, and be on solid legal grounds. It helps if you can be courteous and treat them the way you would want to be treated …. or the way you would want someone to treat your wife or mother…. but that doesn’t mean you are let out of the responsibility of doing your job.
Comment by Devon Stavrowsky — November 27, 2010 @ 11:04 pm |