Probable Cause

Most of my writing lately has had to be devoted to motions.  As California courts increasingly ignore the law, it seems more important — I’m not sure why, perhaps at least for future generations, sort of “a la the Declaration of Independence” — to document things, rather than try to wing it with the more ephemeral oral arguments.

In the course of working on a motion, I ran across this new argument, which can only be titled “You Just Got Pwned!”

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Once upon a time, in the land that would one day become the United States of America, law enforcement officers of the King of England were allowed by the King to stop and search citizens of the land without the need for specific warrants.

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Officially, the basic rule in the United States of America is still that “searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions.”  (Arizona v. Gant, 129 S.Ct. 1710, 1716, 2009 Daily Journal D.A.R. 5611 (2009).)

In 1968, the United States Supreme Court said,

This inestimable right of personal security belongs as much to the citizen on the streets of our cities as to the homeowner closeted in his study to dispose of his secret affairs. For, as this Court has always recognized,

No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.

(Terry v. Ohio, 392 U.S. 1, 8-9, 88 S.Ct. 1868 (1968), quoting Union Pac. R. Co. v. Botsford, 141 U.S. 250, 251, 11 S.Ct. 1000, 1001, 35 L.Ed. 734 (1891).)

But as Bill O’Reilly would say, “That’s what the people who are paid for hating America want you to think.”

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