learn@igloo.scum.com (Bill HMRP Vajk) (02/08/91)
Gail Thackery in EFF News #102 is quoted: > As to last comment, I can't think offhand what is meant by "forced > entry" -- most search warrants permit that if all else fails, but since > we usually try to find/get someone home first, it's rare -especially in > the kind of cases we're especially interested in here. If by "forced > entry" is meant the "sorry, don't want any" reaction to salesmen, then I > guess we'd have to call most of them that. The only truly "reliable" > accounts of anything are those tested in court & passed on by the trier > of fact (jury, judge) -- in legalsystem terms. (Within that system, > until it's been so tested, it's only opinion, no matter whose.) The following is taken from a handbook entitled "Proving Federal Crimes" written by James C. Cissell, U.S. Attorney (1980.) "An officer serving a search warrant on a house, absent exigent circumstances, must announce: (1) the authority under which he is acting, and (2) the purpose of his call. If he is refused admittance after such an announcement, he may enter forcibly. 18 USC ~3109; U.S. v. Woodring, 44 F.2d 749 (9th Cir 1971). Merely opening an unlocked door is a forced entry. Sabbath v. U.S., 391 U.S. 585 (1968). In Miller v. U.S., 357 U.S. 301, 304 (1958), because '[t]hey did not expressly demand admission or state their purpose for their presence,' an arrest was held unlawful when officers responded 'police' in a low voice to the defendant's inquiry, 'Who's there', and then broke into his home when the defendant attempted to close the door. All evidence seized as the result of unlawful arrest was inadmissible." I note with mild amusement the mindset of the author of the text. It is obvious who the defendant in Miller v. U.S. was. It wasn't Miller. Another question which has been raised in recent days has to do with the "legality" of conducting a search without a signed warrant in hand. The referenced handbook defines circumstances under which a search warrant may be issued by a magistrate by telephone. Given the proliferation of fax machines in recent years, I would hope that modern practices incorporate concurrent paperwork. It would seem, nonetheless, that the minimum legalities for a search require only the permission of a judge or magistrate. Bill Vajk | Experience should teach us to be most on our guard | to protect liberty when the government's purposes | are beneficent. | - Louis Brandeis
new@ee.udel.edu (Darren New) (02/12/91)
In article <3326@igloo.scum.com> learn@igloo.scum.com (Bill HMRP Vajk) writes: >Another question which has been raised in recent days has to do with the >"legality" of conducting a search without a signed warrant in hand. The >referenced handbook defines circumstances under which a search warrant may be >issued by a magistrate by telephone. Actually, these two statements have little to do with each other. According to my brother (a State trooper), a common procedure is to write up the warrant, make a copy, take the copy to (near) the house or whatever while another officer is getting the judge to sign the original warrant, and then to call the field officers on the radio after the judge has signed the warrant. This is evidently the reason that people talk about "unsigned photocopies of a warrant." The warrant is signed: just not the one that *you* get to see. -- Darren -- --- Darren New --- Grad Student --- CIS --- Univ. of Delaware --- ----- Network Protocols, Graphics, Programming Languages, Formal Description Techniques (esp. Estelle), Coffee, Amigas ----- =+=+=+ Let GROPE be an N-tuple where ... +=+=+=
ckd@cs.bu.edu (Christopher Davis) (02/12/91)
Bill> == Bill HMRP Vajk <learn@igloo.scum.com>
Bill> The following is taken from a handbook entitled "Proving Federal
Bill> Crimes" written by James C. Cissell, U.S. Attorney (1980.)
Bill> "[...] In Miller v. U.S., 357 U.S. 301, 304 (1958), because
Bill> '[t]hey did not expressly demand admission or state their purpose
Bill> for their presence,' an arrest was held unlawful when officers
Bill> responded 'police' in a low voice to the defendant's inquiry,
Bill> 'Who's there', and then broke into his home when the defendant
Bill> attempted to close the door. All evidence seized as the result of
Bill> unlawful arrest was inadmissible."
Bill> I note with mild amusement the mindset of the author of the text.
Bill> It is obvious who the defendant in Miller v. U.S. was. It wasn't
Bill> Miller.
Actually, the *original* defendant was probably Miller. If I recall my
Biz Law class properly (it's been a couple years, and it wasn't exactly
my major, so your mileage may vary, etc., etc... Mike Godwin can
probably affirm/refute this):
Appealed ruling have the *appealing* party listed first. Therefore, the
original court case was "U.S. v. Miller." When it reached appellate
courts, it became "Miller v. U.S." instead.
--
[ Christopher Davis - <ckd@cs.bu.edu> - <..!bu.edu!cs.bu.edu!ckd> ]
A message destined for delivery in *your* domain is fair game for
anything you may want to do, up to and including translating the entire
message, header and all, into Swahili. -- chip@tct.uucp (Chip Salzenberg)mnemonic@eff.org (Mike Godwin) (02/12/91)
In article <CKD.91Feb11201751@bucsd.bu.edu> ckd@cs.bu.edu (Christopher Davis) writes: > > Bill> == Bill HMRP Vajk <learn@igloo.scum.com> > > Bill> I note with mild amusement the mindset of the author of the text. > Bill> It is obvious who the defendant in Miller v. U.S. was. It wasn't > Bill> Miller. > >Actually, the *original* defendant was probably Miller. If I recall my >Biz Law class properly (it's been a couple years, and it wasn't exactly >my major, so your mileage may vary, etc., etc... Mike Godwin can >probably affirm/refute this): I think you're probably right, Chris, although I cannot lay hands on the text of this particular decision (there's a Miller v. U.S. in my criminal-procedure hornbook, but it's a different case). In federal appellate cases, the first named party in the case is generally the appellant, who may well have been a criminal defendant in the proceedings below. Example: Mapp v. Ohio, which established the exclusionary rule for state police action, has Mapp listed first, since she appealed the case. But Ms. Mapp was the defendant originally. --Mike -- Mike Godwin, (617) 864-0665 | "That information, as I have repeated infinitely mnemonic@eff.org | to myself, is classified ... though the keeping Electronic Frontier | of secrets ... seems less meaningful to me now." Foundation | --Major Garland Briggs
learn@igloo.scum.com (Bill HMRP Vajk) (02/14/91)
In article <CKD.91Feb11201751@bucsd.bu.edu> Christopher Davis writes:
~ Bill> 'Who's there', and then broke into his home when the defendant
~ Bill> attempted to close the door. All evidence seized as the result of
~ Bill> unlawful arrest was inadmissible."
~ Bill> I note with mild amusement the mindset of the author of the text.
~ Bill> It is obvious who the defendant in Miller v. U.S. was. It wasn't
~ Bill> Miller.
~ Actually, the *original* defendant was probably Miller. If I recall my
~ Biz Law class properly (it's been a couple years, and it wasn't exactly
~ my major, so your mileage may vary, etc., etc... Mike Godwin can
~ probably affirm/refute this):
~ Appealed ruling have the *appealing* party listed first. Therefore, the
~ original court case was "U.S. v. Miller." When it reached appellate
~ courts, it became "Miller v. U.S." instead.
The defendant in the case was the US, period. The case being quoted is
Miller v. U.S. The history of how the case got there has absolutely
nothing to do with the fact that the author continued to think of Miller
as the defendant even when Miller bacame the plaintiff.
Bill Vajk | How we think affects how we act.jsharaf@world.std.com (Jim Sharaf) (02/22/91)
In article <3331@igloo.scum.com> learn@igloo.scum.com (Bill HMRP Vajk) writes: > In article <CKD.91Feb11201751@bucsd.bu.edu> Christopher Davis writes: > > ~ Bill> 'Who's there', and then broke into his home when the defendant > ~ Bill> attempted to close the door. All evidence seized as the result of > ~ Bill> unlawful arrest was inadmissible." > > ~ Bill> I note with mild amusement the mindset of the author of the text. > ~ Bill> It is obvious who the defendant in Miller v. U.S. was. It wasn't > ~ Bill> Miller. > > ~ Actually, the *original* defendant was probably Miller. If I recall my > ~ Biz Law class properly (it's been a couple years, and it wasn't exactly > ~ my major, so your mileage may vary, etc., etc... Mike Godwin can > ~ probably affirm/refute this): > > ~ Appealed ruling have the *appealing* party listed first. Therefore, the > ~ original court case was "U.S. v. Miller." When it reached appellate > ~ courts, it became "Miller v. U.S." instead. > > The defendant in the case was the US, period. The case being quoted is > Miller v. U.S. The history of how the case got there has absolutely > nothing to do with the fact that the author continued to think of Miller > as the defendant even when Miller bacame the plaintiff. It doesn't really matter all that much, but Miller didn't become the plaintiff when he appealed -- he's still the defendant. If you look at the caption of the case in the Supreme Court (the caption is the formal title, listing the parties and their positions in the case), it probably reads something like this: John [I've made up a first name] Miller, Defendant-Appellant vs. United States of America, Plaintiff-Appellee -- ___________________________________________________________________________ | "The C-in-a-Circle Ranch" | ________ | James A. Sharaf / \ | 46 Newbury Street / cc \ | Newton, Massachusetts 02159 / c c \ | / c \ | (617) 964-5866 \ c c / | Internet: jsharaf@world.std.com \ cc / | UUCP: uunet!world!jsharaf \ / | \________/ | | ______________________________________|_____________________________________ -- ___________________________________________________________________________ | "The C-in-a-Circle Ranch" | ________ | James A. Sharaf
learn@tartarus.uchicago.edu (William Vajk (igloo)) (02/23/91)
In article <JSHARAF.91Feb21204310@world.std.com> Jim Sharaf writes: >In article <3331@igloo.scum.com> Bill HMRP Vajk writes: >> ~ Bill> I note with mild amusement the mindset of the author of the text. >> ~ Bill> It is obvious who the defendant in Miller v. U.S. was. It wasn't >> ~ Bill> Miller. >> The defendant in the case was the US, period. The case being quoted is >> Miller v. U.S. The history of how the case got there has absolutely >> nothing to do with the fact that the author continued to think of Miller >> as the defendant even when Miller bacame the plaintiff. > It doesn't really matter all that much, but Miller didn't >become the plaintiff when he appealed -- he's still the defendant. It is the mindset to which I was originally referring. Amazing how hung up folks tend to become on the "details." Based on the original complaint, Miller remains the defendant. BUT at the level where we are speaking, Miller is indeed complaining about an injustice against him by the government. He presents his case first, as plaitiff, and the government defends their actions (and the lower level court ruling as well.) If we review the logic of the semantics involved, in Miller v. US it is impossible (within the context of the proceeding at hand) for Miller to be the defendant. Once again, it is the mindset which continues to regard Miller the defendant which was the subject of my commentary. Bill Vajk