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Search And Seizure

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issackd

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Scene: G gives her boyfriend, B, control of a drawer in a cabinet with a promise that it can be "used as your own" and gives B a key to her apartment so he can access this drawer, without her being present, anytime.

The next day, police who suspect B is a drug dealer arrive at G's apartment and ask G to enter the apartment (they tell her they're on a routine operation and think B is a drug dealer). G agrees to the impromptu search and the police find drugs in B's drawer. B is not present.

My question is: does this drawer count as G's or B's property? B pays no rent, no utility, no upkeep, etc. for this apartment. But G has ceded control of the drawer to him. Did G's allowance of police to search her apartment include the drawer? (If it belonged to B, then no... if it belonged to G, then yes).

This was a question a long time ago on an old exam, but I forgot to ask about it here. I just found the exam (from 1999) and thought it'd be interesting to get some Objectivist perspectives on this.

Thanks,

Issack D.

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My question is: does this drawer count as G's or B's property? B pays no rent, no utility, no upkeep, etc. for this apartment. But G has ceded control of the drawer to him.
Your setup suggests that it is still G's property, namely "gives B control of a drawer in a cabinet that can be used as his own". I don't interpret that as actually transferring ownership, but rather as some kind of unrestricted grant of permission to use, just as, for example, my son has unrestricted permission to use my circular saw -- but I didn't give it to him. If she had said "Here, I'm giving this to you, take it", then I'd say that ownership actually had transferred. (Note that I peeled away the search issues because that just raises all sorts of other lovely complicating questions).

The foundational question is what communicative acts can be construed as transference of ownership. Certain statements are very clear ("I give you all and singular, my estate and interest, right, title, claim and advantage of and in that orange, with all its rind, skin, juice, pulp and pips, and all right and advantage therein, with full power to bite, cut, suck, and otherwise eat the same, or give the same away as fully and effectually as I the said A.B. am now entitled to bite, cut, suck, or otherwise eat the same orange, or give the same away, with or without its rind, skin, juice, pulp, and pips, anything hereinbefore, or hereinafter, or in any other deed, or deeds, instrument or instruments of what nature or kind soever, to the contrary in any wise, notwithstanding") or "You can borrow by screwdriver for 10 minutes". In this case, because of the nature of the BF/GF relationship, it's reasonable to interpret the statement as a dramatic declaration of affection rather than a transfer of ownership. So I would vote for "not transferred", pending further information on any contracts.

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I agree with David: I don't think ownership has been transferred. Given the specific language of the issue, G gave her boyfriend control of the drawer and permitted him to use it for what he wanted. You can't permit someone to control their own property; that's not "ownership", it's dictatorship, fascism. She didn't hand him the detached drawer, then say "you can keep it in the chest, or take it home, I don't care what you do with it." Her allowance was no more a tranfer of ownership than allowing him to sit on the couch affords him ownership of the cushion.

Had she truly given him the drawer, then it could be construed as a type of verbal contract that he could keep it in the chest, in her apartment; and it would be just as equal an act of ownership for him to take it home, paint it, burn it, or do whatever he wanted with it. But, the drawer remains her property.

It's a semantic distinction for sure, but not one that will get her out of hot water when the cops find contraband on her premises (or, rather, premises to which she's been contractually granted temporary custody by her landlord.)

If the apartment is indeed rented, then not only is she responsible for the contraband's presence (in the view of the landlord who forbids the materials), but so is the landlord. Ultimately it's his property, and the police will leverage the landlord against G. If they are really looking for B, they'll leverage G against him. In the end, someone's going to jail ... and Mr. Roper ain't going to the big house for Jack Tripper, Chrissy, or Janet.

This is the "rationale" behind local "crack-house laws", and the Rave Act at the Federal level (which couldn't pass on it's own, but could as an attachment to the Amber Alert legislation). The idea is that low-rent landlords, concert promoters, bar and club proprieters, and other property owners can be prosecuted for posession and distribution of illegal substances found on the premises, even if the property owner is completely unaware of them. "If they're afraid to lose their freedom and have their property confiscated, the owners do everything in their power to keep the druggies away."

This, of course, is a highly aggregious extension of the "war on drugs", and is clear evidence that corrupt officials will stop at nothing to inhibit personal freedom - even that of innocent bystanders - in the pursuit of more power.

Edited by synthlord
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As an extension to the discussion, if the police enter the apartment without a warrant and find the drugs, in the US, can B claim a violation of his 4th amendment rights to search/seizure? In Canada, he could not, because it was not his property that was being searched, nor his person. The Charter of Rights and Freedoms' violation must apply to the person whose property it is... how about in the US? Can B sue the gov't if G's apartment gets unlawfully raided and his crack-cocaine is possessed?

Issack

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There have been several cases like this, and each one has its individual merits. Furthermore, each state in the US treats these cases differently (as a matter of law).

But in this scenario, with your twist, no, B can't claim his rights were violated because the residence being searched wasn't his. But the landlord definitely could, and possibly so could G. By law, a search warrant in the US is supposed to identify specifically the property being searched, and what the police are looking for.

However, this requirement is circumvented constantly on "fishing expedition" searches, where the police get a deliberately vague warrant signed. Many people think a claim of "probable cause" is enough to let the cops in, and many states will defend the police's questionable search if drugs, child porn, etc. are found.

And, not to get too off-topic, but the Patriot Act actually allows police to search your home without your knowledge or consent - "sneak and peek" searches - so long as they let you know in 4-6 weeks after they invade your property. While such power is "supposed" to be used to gather intel on "domestic terrorist cells", simply granting that power to gov't agents violates the principles on which the 4th Amendment was written.

Back to your posit, one could sue the government for abridging 4th Amendment rights, however it would be impossibly difficult in our system. You would spend hundreds of thousands of dollars defending yourself, potentially appealing the case all the way to the Supreme Court ... and the best you'd get is a decision finding the government did indeed violate your 4th Amendment rights. The penalty to the government? The gov't comes to you and says, "Oops; won't happen again." But, if the cops did find drugs, fat chance buddy.

(Then again there was a story I read about a guy in MN or somewhere who got pulled over for not having a front license plate on his car. The guy was nervous, so the cops got suspicious and found his trunk full of cocaine. He was eventually acquitted of the charge because, in that state, one is not required to have a front license plate on their car. WTF?)

But under no circumstance, in any state (I imagine), would you get your confiscated property back if that property was illegal, even if it was illegally siezed by law enforcement.

Edited by synthlord
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I think the issue in the original question (based on current law) is really one of "exclusive use", not so much ownership. Did the girlfriend grant exclusive use of the drawer to the boyfriend? If she did, then as it stands now, she cannot be the one to consent to the search of said drawer. However, if they both have use of the drawer, regardless of whose property it is, either of them can consent to a search of the drawer.

As mentioned by Synthlord, search warrants are a different matter. They circumvent consent to begin with, and the permissible areas of search are dependent upon the specifics of the search warrant.

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Two points of law:

1. If G consented to a warrantless police search, is this search legal? In Canada a search must be "reasonable" and this means:

a) authorized by law

B) the law authorizing the search is reasonable

c) the manner in which the search was conducted was reasonabl.

This was determined in 1987 in R. v. Collins (1987), 33 C.C.C. (3d) 1 (S.C.C.) - for those interested...

A search which is "unreasonable" is presumed to be illegal... I'm not sure why our system started this distinction in the first place (it's in our Charter of Rights and Freedoms - like your Bill of Rights).

2. Does the drawer count as land in the legal context? I've heard of cases in Canada where things planted on the land (i.e. houses, barns, fences, etc) are counted legally as "land". Would a dresser count as land in this case? Would it depend on whether it was a fixture or not?

synthlord, if the courts find the evidence to be obtained unconstitutionally and, in Canada, if admitting this evidence causes "disrepute" in the "administration of justice" (s. 24(2) of our Charter of Rights and Freedoms), then the evidence is not admissible - in cases where that's the only evidence linking the person, that person walks free of whatever he/she is being tried - sometimes murder, sometimes drug traffiking, etc. Can someone please elaborate as to how this compares to the US legal system?

Issack D.

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Back to your posit, one could sue the government for abridging 4th Amendment rights, however it would be impossibly difficult in our system. You would spend hundreds of thousands of dollars defending yourself, potentially appealing the case all the way to the Supreme Court ... and the best you'd get is a decision finding the government did indeed violate your 4th Amendment rights. The penalty to the government? The gov't comes to you and says, "Oops; won't happen again." But, if the cops did find drugs, fat chance buddy.
If the court does find that the search was illegal, then the conviction can be overturned (e.g. Bond v. US). From the government POV, this is a mild form of penalty (not being allowed to do whatever it wants to). You might maybe have the ability to sue for damages, with a large does of "good luck, buddy" added in. If you just want to sue for the cost of the stash, there's less than a snowball's chance. But if the police beat the tar out of you to get a confession (or for any other reason), even if it's about your illegal act such as possessing pot, then you may have recourse for the violation of your rights (to not be beaten or illegally searched). To get anywhere, at least against the US government, you probably have to show negligence or malice on the part of the government. (Theoretically, the government could allow itself to be sued in a case like Bond, but get real, eh?)

I would be interested to see if there is a difference of substance between US and Canada, since there is no "disrepute" requirement here. As you see in Bond, it's just a matter of constitutionality. Of course, doing something unconstitutional necessarily brings disrepute to the law. So I'm just curious what work the "disrepute" condition does. BTW also referring to Bond and the 4th, the restriction against unreasonable searches and seizures is not just about land, it extends to "persons, houses, papers, and effects", thus suitcases and drawers.

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Hey there,

Here is section 24 of the Canadian Charter of Rights and Freedoms which deals with the disrepute factor:

24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. (Emphasis added).

---

A famous case illustrating just what s. 24(2) means is R. v. Collins. It indicates that three sets of factors must be taken into account in determining whether evidence should be admitted pursuant to s. 24(2). First, there are those factors which go to determining whether the admission of the evidence will affect the fairness of the trial. This issue is usually given the greatest weight. Second, there are those factors which demonstrate either the seriousness or the insignificance of the violation (police not asking you your name vs. strip searching you in the middle of a public area). Third, there are those factors which are concerned with the effect of the exclusion of the evidence on the reputation of the administration of justice.

Hopefully that helps illustrate some substantive issues vis-a-vis our neighbours to the south.

Issack D.

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