FYI ... here's a very worthy anti-terrorist and pro-2nd amendment cause for everyone's consideration.
THE "ARM OUR PILOTS NOW" PETITION!
PASS THE WORD ALONG TO ALL YOU KNOW
Posted on 04/25/2002 1:52:14 PM PDT by Just another Joe
'Living in a police state'
By JOHN WISELY and STEPHEN W. HUBER,
April 24, 2002
The state Legislature has given police power to search your home without telling you why
Two new laws, which took effect Monday as part of anti-terror efforts, also shield from public scrutiny the reasons for police searches.
Defense lawyers and civil libertarians are outraged at the laws, which make search warrants and supporting documents such as affidavits non-public records.
"If you think the police did secretive work before, just wait," defense attorney William Cataldo said. "It gives more power to the ignorant and more power to those who would take your rights."
Defense lawyer Walter Piszczatowski said: "This is nuts, this is beyond nuts.
"What happened to the Fourth Amendment? We're living in a police state."
That means the public, the press, and in some cases even the person accused of the crime, can't know why the police entered a home without permission.
Under previous laws, the records were public, unless a judge ordered them sealed for a specific reason. In federal courts, that remains the case. But now, search warrants in state courts are automatically closed to public view.
"I think this is absolutely unconstitutional," said Dawn Phillips, a First Amendment lawyer with the Michigan Press Association. "We objected to it at the time. This thing passed like greased lightning."
The House portion of the bill passed unanimously and the Senate version passed 27-8. The chief sponsor of the bill in the state senate was Shirley Johnson (R-Royal Oak) while Bill Bullard (R-Highland Township) was a cosponsor. In the state House, Nancy Cassis (R-Novi) was among 20 sponsors.
The American Civil Liberties Union also objected to the law's change. ACLU spokeswoman Wendy Wagenheim said the group is reviewing the law.
Law enforcement supported the changes. Oakland County Prosecutor David Gorcyca said the laws protect victims, witnesses and confidential informants.
Gorcyca said the procedure for obtaining a search warrant didn't change, nor did the rights of the defendant to challenge a bad warrant or the ill-gotten gains of an illegal search.
"When affidavits are filed, previously they divulged a large portion of the investigation and where it was heading and that could hamper the investigation and the direction of the investigation," Gorcyca said.
"It doesn't mean you can circumvent the judicial process. All we're doing is suppressing the contents of the affidavit. It does prevent the public and the media from obtaining information during the investigation but it doesn't prevent the defendant and the defense attorney from challenging the search warrant."
Gorcyca cited drug conspiracy cases as those where witnesses are frequently in danger unless their identity is kept private during the investigation.
"In the drug world, witnesses are fearful all the time," he said. "Those are reluctant witnesses who are afraid to come forward and testify. In those cases, fear and intimidation is real. That's why grand juries are so vital. And this provides the same secrecy as a grand jury and does not impugn anyone's rights."
Civil libertarians say those goals can be met with a much narrower approach, like the one used in federal court.
"A judicial finding needs to be made on a case-by-case basis," said David Moran, a constitutional law professor at Wayne State University in Detroit.
When police are investigating a crime and they believe evidence is stored in someone's home, car or other private place, they must submit a sworn affidavit to the court spelling out their case.
A judge reviews the document, then decides if there is enough evidence to search without the owner's permission.
The Fourth Amendment to the U.S. Constitution requires "probable cause" to issue a warrant and notes they must be written "particularly describing the place to be searched and the persons or things to be seized."
The changes are contained in two new laws - public acts 112 and 128.
State Court administrator John Ferry Jr. spelled out the changes to courts across the state in a memo last Friday. Public act 112 makes "all search warrants, affidavits and tabulations in any court file or record retention system nonpublic," according to Ferry's memo.
The memo goes on to say that public act 128 "provides for suppression of a search warrant affidavit upon a showing that it is necessary to protect an ongoing investigation or the privacy or the safety of a victim or witness."
When contacted Tuesday for clarification on the memo, a spokeswoman for the state court administrator's office declined comment. Marcia McBrien said the laws could appear before the Supreme Court for interpretation and it would be improper for her to offer one in advance.
The new laws could also create headaches for court recordkeepers. In many courts, search warrants are filed along with the case file. It's unclear how clerks will keep the two separate.
The new law also affects the rights of people who are searched. According to a analysis of the law done in the House of Representatives, the state Court of Appeals ruled that affidavits be given along with a warrant at the time of a search.
The new law changes that.
"An officer executing a search is not required to give a copy of the affidavit to the person or leave a copy at the place from which the property was taken," according to Ferry's memo.
.
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And an update from April 25, 2002
Lawmakers defending secret warrants
By JOHN WISELY
April 25, 2002
Local legislators are defending two new laws that limit public access to court documents.
The laws, which took effect this week, stop the public from gaining access to search warrants and affidavits. It deems them nonpublic records.
Lawmakers - who unanimously voted for the measures in the Senate and House of Representatives - said the laws protect crime victims, informants and witnesses from criminals and the media.
But civil libertarians and First Amendment lawyers argue they invite police abuse and curtail public scrutiny.
State Sen. Bill Bullard, R-Highland Township, who co-sponsored one of the bills with Sen. Shirley Johnson, R-Royal Oak, said despite specific wording that makes the records "nonpublic," he believes affidavits still are subject to Michigan's Freedom of Information Act (FOIA). Johnson could not be reached for comment.
"FOIA trumps that," Bullard said Wednesday. "If we had wanted to amend FOIA, we would have done that."
But a Friday memo from State Court Administrator John Ferry Jr. to courts across the state makes no such distinction. The memo tells clerks that access to the records is restricted.
When an Oakland Press reporter sought a search warrant from a district court Tuesday, a clerk said "they can't be released" and handed over a copy of the memo about the new law.
The new law "makes all search warrants, affidavits and tabulations in any court file or record retention system nonpublic," according to the memo.
"How else is that to be interpreted?" said Dawn Phillips, a First Amendment lawyer with the Michigan Press Association. "People in law enforcement want to follow laws. If they are looking at that memo, they are not going to release those records."
The bills were part of an anti-terrorism package that passed the Legislature after the Sept. 11 attacks.
At issue are affidavits, the sworn information police submit to courts when they want to get permission to search someone's home. The information often includes the name of the person who has told police where the criminal or evidence can be found.
If a person's home is searched and he or she is charged with a crime, a defense lawyer can demand access to the information. If the government seeks to forfeit the person's property in a civil case, the file also would be opened.
But if no charges are brought, the new law doesn't spell out a way for the person who was searched to learn why the police searched the home.
Pontiac defense attorney Elbert Hatchett said the move is an expansion of a dubious process of sealing warrants.
"Unfortunately, that's been the case for some time," Hatchett said. "The officer asks for a search warrant and then asks the judge for a suppression order citing an on-going investigation. It's almost automatic. These courts and these legislators have always exalted the rights of police over the rights of the accused."
State Rep. Ruth Johnson (R-Holly) said the point of the law is to protect victims. She said judges still must approve warrants.
"Everything we do is a balancing act," she said. "The judge is the person that is entrusted to make sure it's done properly."
State Rep. Nancy Cassis (R-Novi), who cosponsored the bill in the House, said the provisions originated in a domestic violence package. Legislators were worried that attackers could learn where their victims were staying by getting the address from the affidavit.
"Believe me, if there were to occur abuse of this, I'm sure it would be relooked," Cassis said.
State Rep. Andrew Raczkowski (R-Farmington Hills) said closing the affidavits to public view protects victims from criminals and the media.
"On that affidavit, you also have information about the victim," Raczkowski said. "The media can look up that information and go straight to the victim or a criminal can do that."
If this has been posted I apologize. I searched several different ways and found nothing.
FYI ... here's a very worthy anti-terrorist and pro-2nd amendment cause for everyone's consideration.
When a full attack was pressed against our 4th Amendment rights the women and feminized males were gleeful that we were doing away with crime by eleminating bad guns.
Now, that the 4th Amendment is user siege we should be happy that secret police tactics are going to be a part of our life now. We can all expect that horrible knock on the door late at night.
Ah! Thanks to our liberal friends, the Democratic Party, Bill Clinton and marxist friends, we can now share the experiences of the Jews in Germany and bask in the early days of the Russian revolution.
Check out the bill's sponsors:
"The chief sponsor of the bill in the state senate was Shirley Johnson (R-Royal Oak) while Bill Bullard (R-Highland Township) was a cosponsor. In the state House, Nancy Cassis (R-Novi) was among 20 sponsors."
I suppose we'll have to count them among the "marxist friends".
What is this? The Kafka/Orwell Memorial Search Warrant Suppression Bill? Let's see: They're not changing any procedures and the warrant can still be challenged...how would that go?
Innocent Citizen: "You must have the wrong address on the warrant"
Jack-Booted Agent of the State: "You're free to challenge the validity of the warrant. Which part do you think is incorrect?"
IC: "Uh...I dunno. I'd have to read it first to tell you what parts are wrong"
JBAOTS: "You can't read it...it's sealed by law. So if you can't point out what part of the warrant is flawed, it must be correct, and if it's correct, you must be guilty. Take him away, boys!"
IC: "Wait...what about my rights? Nooooo......"
JBAOTS: "Rights? BWWWAAAAAHAAHAAAHAAHAA....Just where do you think you are, bub? This is America!"
I think I'll have to go back and read "The Trial" again just so's I can get a glimpse of where this country's heading.
Cheers.
At least as far as the State of Wisconsin is concerned, Mr. Hatchett is dead wrong. The correct terminology is indeed, to seek to have the contents of a search warrant "sealed", not suppressed, usually for a specific length of time or until the investigation has concluded. It is not automatically granted and on occasion requires an "in camera" (private) meeting with the judge and the informant or undercover police officer whose life would be risked if they were identified before the conspirators could be arrested.
I've requested that the contents of a search warrant and the search warrant return (the report identifying all items removed for evidentiary purposes) be sealed on limited occasions. In every case, however, it involved the protection of an undercover officer's or informant's life.
Is there a possiblity for misuse and abuse of this investigative/protective tool.......of course, just as there is the possiblity of a defense attorney supplying his client with cocaine while his client is in jail. I've personally investigated the latter, but not the former.
It is our responsibility as citizens to ensure that the people elected to judicial, district attorney, chief of police, etc. positions have been put through the most intense screening process possible and are monitored throughout their tenure in office. The same holds true for screening potential law enforcement officers.
I have conducted investigations of corrupt police agencies outside my department and am proud to say the agencies were completely gutted and the guilty parties were imprisoned.
Just a comment for potential flamers...."No one hates and I mean hates a crooked cop more than an honest one and I was an honest one!"
EODGUY
I wouldn't argue that this needs to be done at times. I DON'T think it should be an automatic proess.
Same here!
Former LEO? I thank you for your service to our country. You're in good company here if you stay away from the knuckleheads. You'll see them show up as lumps on this thread.
You better be wearing body armor when they 'knock' on/down your door - otherwise, two taps and you'll be simply another lump on the rug.
God Bless,
EODGUY
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