...it would be more gratifying to see Reid, Pelosi, Rockefeller & Harman frog-marched down the capitol steps in orange jumpsuits than even Cheney or Rove.

A criminal is a person guilty of a crime...criminality is the state of being a criminal.

I think we are watching two different movies because, at this point, I am just confused.

[Arne]: Businesses are under different rules. Period. For instance, business records are open to subpoena, while your personal papers are not.

Are you saying that the police can't seize your personal papers even with a warrant?

No. But they can't seize them through subpoena, generally.

[Arne]: Even traditional searches are a bit weird (at least according to customary 4thAm law). In the warrant is for a stolen refrigerator, they may still search your drawers. I don't agree but that's the law.

[*** on review, I retract this claim; this specific example is wrong ***] Sorry, mea culpa</>.

Do you not see a difference between a warrant to search a specific house for a stolen refrigerator and a warrant to search any house for a stolen refrigerator?

Yes, I do. I didn't say it was 100% analogous. I offered it as another example of the fluidity at the edges of the Fourth Amendment.

But, FWIW, while it's not permissible to search "any house" for the refrigerator, I'd note that it is permissible to search "any drawer". So there are some similarities.

It's been a while and I had a big brain fart. Agreed that the places searched should be "reasonable" (no elephants in drawers), but such exceptions as the Chimel "reaching area" and "objects in plain sight (while not in the search warrant)" [not to mention, "plain sight" is in many cases elastic] tend to bend the edges of the "place" and "particularity" requirements.

I've long been of the opinion that objects not specified in the search warrant should not be subject to seizure, but that's not the law.

I also think you have the elephant in a drawer backwards. I am still trying to find a direct Supreme Court cite but this is from the 7th Circuit--

You are correct. I was wrong.

QUESTION: The basic reason, I think, is to -- is to describe the scope of the search. If -- you know, if -- if -- if you're looking for an elephant, you can't look in drawers. So where's there an elephant on the search warrant, searching through drawers is beyond the proper scope of the search. Isn't that a good enough reason?

I think so (and so, it seems, do the courts).

But a "roving wiretap" is not permission to tap my friend's house in case I use their phone. Rather, it's a procedural convenience that keeps criminals from defeating surveillance by changing their own phones:

http://en.wikipedia.org/wiki/Roving_wiretap

Under old laws, separate warrants were required for each phone tapped (remnant of the "particular" requirement), and new warrants would be needed for each new phone if the person buys phone cards on a daily basis or uses prepaid cellular, etc. The "roving warrant" is more target-centric, not modality-centric. Keep in mind that the "things to be seized" remains the evidence of criminal planning, etc., and not the phones themselves. The phones are more like drawers in the person's house or pockets in his drawers.

The "roving wiretaps" are not intrinsically more intrusive that old Title 3 warrants; rather, they restore the status quo that existed when people only had a single land line.

Cheers,

The 7-2 opinion was that the recount method violated the 14th Amend.

Even that's nonsense. While the cowardly per curiam majority claimed that seven justices found "constitutional problems:

"Seven Justices of the Court agree that there are constitutional problems with the recount ordered by the Florida Supreme Court that demand a remedy."

in fact, neither Breyer nor Souter did any such thing.

In Part I, the per curiam states:

"With respect to the equal protection question, we find a violation of the Equal Protection Clause."

But neither Souter or Breyer "concurred with part I" but "dissented as to the remedy". They simply dissented. Period. They certainly didn't see anything that "demand[ed] a remedy", much less the faux remedy (that in fact caused the very problem they insisted was so troubling).

Breyer even said: "And the more fundamental equal protection claim might have been left to the state court to resolve if and when it was discovered to have mattered."

As I've often noted, the majority found a "problem" before the actual events under consideration even took place and even before there was any evidentiary record to decide on. Breyer noted that (as did Souter, in counseling that the court abstain from even getting involved).

The majority opinion was just plain dishonest (and not just in this one respect). It stands as a candidate for one of the worst decisions of all time.

Cheers,

I don't think we're far enough apart in opinion to trouble later threads with more. I'll be glad to chime in next time it comes up. C'ya around,

Cheers,

P.S.: Yes, it does look like ISI might have been complicit in part in the Mumbai attack, primarily through their support for Lashkar-e-Toiba.... Same goes for their (self-interested) use of the Taliban and al Qaeda to organise and train guerrillas for attacks in Kashmir. It is wholly unfortunate that we ever broke bread with ISI.

Glad to see you up and around. Best wishes for the new year!

Cheers,

Thanks for your replies, but at this point I am convinced we are having two different conversations. I will try to pick up this idea with you at a later time because I am curious about your perspective considering your expertise.

To try and plant some seeds hoping our next conversation will be more productive--

The "third parties" are communications providers. The communications providers are also being searched.

Let's say I am accused of stealing a refrigerator and the police believe that you are not involved, but the cassette tape in your answering machine may hold indirect evidence of this theft.

You are the "communications provider" in this metaphor. Your house is being searched for evidence against me but, you still have fourth amendment rights.

Read my original post with this metaphor in mind and I think we will come closer in understanding.