No, under my system they would be stuck with what they filed. It would bea whole lot more secure than what happens now because the software would be written to be secure.

This is especially common with Fourth Amendment issues. You can see it in the logic behind the exclusionary rule: the police have an interest in getting convictions, and they might use illegal searches to get evidence to convict people; therefore, if the search is illegal, we exclude the evidence, thus undoing the effect of the search! Brilliant! Except the police just trashed your house and shot your dog, and we can’t undo that.

Um, yeah, I get that. Go to police4aqi.wordpress.com, read what I have written there and then get back to me.

You’re making the standard lawyer mistake of evaluating one part of the system under the assumption that every other part works perfectly. This is especially common with Fourth Amendment issues. You can see it in the logic behind the exclusionary rule: the police have an interest in getting convictions, and they might use illegal searches to get evidence to convict people; therefore, if the search is illegal, we exclude the evidence, thus undoing the effect of the search! Brilliant! Except the police just trashed your house and shot your dog, and we can’t undo that. And the police also have an interest in harassing and punishing people they don’t like. But the Supreme Court is full of white male Harvard Law graduates, and in their experience the police don’t behave like that.

The point i am making is not that important, and you are still completely missing it.

Basically i am saying that the police are probably going to fill out less completely ridiculous warrants when using a pre-signed form. this because they know that if the pre-signed warrant is facially ridiculous, or incredibly sloppy, then a later investigation (eg, iad, civil suit) might uncover the truth. OTOH, if the judge actually rubberstamps it, then it is less likely to come back and harm the policeman-requester, regardless of the weak probable cause basis and/or reckless errors.

And, yes, the whole system would probably work better if there were no warrants ever. The true value of a warrant isn’t that magistrates stop those without probable cause. Because they don’t. they may sometimes reign in scope of the search, but even that is pretty marginal as far as value to a free society.

rather, the value of a warrant, in the modern world, is that it prevents the policeman from making up new facts supporting probable cause, adding new places to search and/or adding new items to seize after the fact. The other value is that the seizee / arrestee will genereally get to see their warrant application papers, at least if they are serious enough to hire a lawyer.

When you look at the values of the previous paragraph, you realize that a magistrate is not needed. All that is needed is that the application documents be filed in a secure place so that the policeman can’t tamper with them after the searching and seizing happens. Also, there will be a record that the arrestee / seizee can access for later suppression hearings (when bad stuff/person is found) of civil suits (when arrestee/seizee turns out to be innocent). For exmple, the system by which applicants file Patent Applications electronically with the patent Office would work just fine. the patent application, as filed, is kept inviolate and nobody serious reads it for year or two or three. then, at 18 months, the whole world can read it. it would be better if this is how warrant application papers worked.

IOW, written warrants (especially the supporting “affidavits”) are important, but not because of the magistrate’s review (such as it is), but for other reasons.

I got into this with Professor Kerr about a year ago. He is EXTREMELY resistant to looking at the value of warrants in this manner I have outlined above. But, he is pretty much a blue koolaid slurper, so one would expect that out of him.

Go on, and which one of the two is no longer employed by the state?

This is probably not completely uncommon.

“I guess I could have said –pre-signed warrants– instead of “unsigned warrants.”

Yes, and I think it would have been best to stick to the facts of the case. There is a *world* of difference between a pre-signed warrant and an unsigned warrant; one is, perforce, evidence of judicial corruption, while the other is merely evidence of incompetence or illegal activity by the police.

“…of course, the existence and/or relative strength of probable cause is independent of whether there is no warrant…”

Not so. The existence of probable cause is a pre-condition to the judicial issuance of a warrant. The existence of pre-signed warrants completely removes the element of establishing/demonstrating probable cause from the equation, rendering its very existence a moot and extraneous point. Probable cause only becomes a factor, and only exists as a pendant criterion, upon the due execution of an application for a warrant. Without the need for such application and demonstration, as we find in a system that provides for pre-signed warrants, probable cause becomes entirely ephemeral.

The right to a trial by a jury of one’s peers does not imply that a defendant could not opt to be tried by other means. On the other hand, the cited section of the Constitution should be significant for another reason: illegitimate actions can by definition form no part of a government agent’s legitimate duties, nor can any law grant legitimate immunity to government agents who deliberately act illegitimately. While it may be reasonable and appropriate for certain statutes to specifically authorize certain government personnel to do things as part of their duties which would be illegal for the general citizenry, and it may even be reasonable to extend such exemptions in cases where a government agent believes he is acting legitimately (e.g. using a warrant which was supposed to be issued for 742 Evergreen Terrace but was mistyped as 724 Evergreen Terrace, he conducts a search of the latter property; such a search should not be regarded as having been legitimate, nor should any evidence found in it be admissible, but the police officer who searched the address on the warrant should not be punished). Anyone claiming such an exemption, however, should be called upon to demonstrate that he had a reasonable belief that his actions were legitimate. A cop who breaks into people’s houses using warrants that he knows were not issued on the basis of probable cause backed by oath or affirmation relating personal knowledge of the affiant is a burglar and/or robber, depending upon whether he accosts any occupants therein; any judge who knowingly issued illegitimate warrants should be prosecuted as a conspirator.

Something I’ve wondered about: the Constitution forbids the granting of Titles of Nobility by either state or federal governments. One of the principal usufructs of nobility is the right to be tried only by a jury of peers. Isn’t this exactly the right being granted by substituting police and judicial review boards, staffed by senior police officials and judges, for the courts the rest of us are tried in? And doesn’t this amount to granting a de facto title of nobility?

I suspect a more thorough investigation could determine additional criminality. Nevertheless, throwing around rhetorical accusations, “…did Cochran have a similar payday?” with no more evidence than some other proven malfeasance is unwarranted libel. (no pun intended)

I’m not a huge fan of the Patriot Act, and never have been, but I believe (believe, rather than know, mind. If I’m wrong, please tell me) that the Patriot act boiled down to allowing the government to use against terrorists the tactics we already allowed it to use against drug offenders. Now, neither use is a justification for the abuses. But I am suck and tired of

A) People having hysterics about the Patriot Act as if this kind of out-of-control behavior was in any way new.

and

B) Lectures on the dangers of the Act from (and here I will specifically exclude you) people who I begin to think are primarily concerned that all of a sudden their decades long flirtation with Radical Islamic idiots might be a liability.

I thought it was clear. I guess I could have said –pre-signed warrants– instead of “unsigned warrants.” And, of course, the existence and/or relative strength of probable cause is independent of whether there is no warrant, a pre-signed warrant filled in after the fact, or a duly magesterially reviewed and executed warrant.