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Old March 4, 2014, 11:07 PM   #40
tyme
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Join Date: October 13, 2001
Posts: 3,355
1. Reasonable is a weasel-word. I acknowledge that the courts have decided some things are reasonable and others are not, but they have not declared that it's reasonable to search for make and model of items in your home without a warrant (not yet, at least). So, does it even matter?

2. That was the core of my question. How is this *not* equivalent to a search? The means are different. The results could be the same.

3. If one can be asked under penalty of perjury what someone would find if they conducted a physical search, again, *how is it not effectively a search*? I am not interested in the definition of search as a physical incursion into a private space. If a questionnaire has the same outcome, why shouldn't it be considered a search and why shouldn't 4th amendment protections apply?

Using a questionnaire as a means to ask questions irrelevant to suitability for jury duty, simultaneously side-stepping the 4th amendment (questions are not a physical search) and 5th amendment (no realistic threat of criminal prosecution and the answer is unlikely to be incriminating --as long as you answer truthfully :wink: ) seems at best stupid and at worst malicious, but difficult to pin down a reason why it shouldn't be answered. That's why my original post referenced 4th, 5th, *and* Douglas's famous opinion on the matter.

4a. Clear necessity. You don't want someone else being able to retrieve your mail.

4b. Tax law asks questions about finances and other things relevant to how much tax you owe.

4c. That hypothetical of being a witness covers a lot of ground, and I can't answer what I would or wouldn't answer in such a broad set of cases. A question asking if I own The Anarchist Cookbook is not a search, but it's equivalent to a search, and can be declined on 5th amendment grounds where the 4th amendment covers the equivalent physical search.

5. I recognize that. To the best of my knowledge, the 5th amendment protects against being forced to make incriminating statements that can be used in criminal cases, when a reasonable person might believe that the statement might be incriminating and might be used in a criminal case.

However, the way law enforcement and prosecutors, particularly the feds, operate, I take *any* interaction with them *at all* to represent a non-negligible risk of getting dragged into some criminal prosecution, depending on the mood and interests of whatever federal prosecutor is dealing with the case. And even if there's no hint of a criminal case *yet* does not mean there won't be in the future, so in many cases I would be inclined to invoke the 5th amendment defensively even if there's no obvious criminal case in progress.

All this is based on the fact that I don't have close contact with anyone in law enforcement and therefore any contact is likely to be adversarial.
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