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Old June 27, 2013, 05:34 PM   #1
dakota.potts
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Violation of 4th amendment right?

This comes from a Facebook group I'm a part of called "Florida Open Carry" which is largely associated with Florida Carry, Inc. as far as I can tell.

This photo I'm attaching shows a sign that says "bags and coolers will be searched for public safety". This is a public park and the rules are for the 4th of July weekend.

Personally this makes me mad. I see it as an infringement of 4th amendment rights. We have a right to not be searched without reasonable cause and attending a public place is not reasonable cause.

I understand that Baseball games and airports and even private events (concerts) on public lands may require searching before you can gain entrance but I do not believe this to be so for public land.

What do you think?
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Old June 27, 2013, 06:12 PM   #2
kilimanjaro
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Shouldn't they have told what the searches are looking for? Seems to be without probable cause to me, just fishing.
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Old June 27, 2013, 06:37 PM   #3
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To play devil's advocate, things to keep in mind: People are willingly attending the park, and it would be hard to argue that they forced you to be searched because you had to attend the park (unlike, say, the random searches in the NYC subway, which one could argue not having a reasonable alternative mode of transportation). Fireworks+alcohol+higher than normal attendance+cause for celebration=heightened public safety risk. You may not see it as reasonable cause, but the argument can certainly be made that it's there.

Now, if people were to show up, and not consent to a search while also indicating they were leaving, then a search were forced upon them...that would be a different issue.
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Old June 27, 2013, 06:43 PM   #4
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You know what they say about one bad apple !!

They forgot to add number-8

"This is your park, enjoy it"


They still need probable cause !!!
Be Safe !!!
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Old June 27, 2013, 06:52 PM   #5
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The constitutional protection is specific to "evidence gathering". Since this is not a quest for evidence, there is no constitutional violation. If they did find something during one of these searches that was illegal, that evidence would likely be tossed during any criminal trial.
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Old June 27, 2013, 06:58 PM   #6
dakota.potts
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Doyle, I see nothing in the amendment about that. Are you saying a cop could stop and search my ID on the street to see if I'm a felon because that's not evidence gathering?
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Old June 27, 2013, 07:17 PM   #7
Frank Ettin
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Remember that the Fourth Amendment reads (emphasis added):
Quote:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; ....
If there is a disagreement about whether, in particular circumstances, searching one's belongings is unreasonable, that would be a matter to be resolved by the federal courts. The governmental authority imposing the search requirement would have the opportunity to try to convince the federal court of the reasonableness of the searching.

In light of the circumstances and what happened at the Boston Marathon, I'm not prepared to bet against the governmental authority being able to make its case.
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Old June 27, 2013, 07:49 PM   #8
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Are there some past court cases or any kind of papers that might give some guidelines as to what's reasonable and unreasonable? I know the supreme court has found that a person having a gun (even open carried where legal) is not reasonable cause to suspect a crime, so I'm having a hard time thinking that simply attending a public area could prove so.
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Old June 27, 2013, 07:57 PM   #9
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Quote:
In light of the circumstances and what happened at the Boston Marathon, I'm not prepared to bet against the governmental authority being able to make its case.
Yep.......if you don't like it, don't go. It is not unreasonable to search to make sure you aren't smuggling in some contraband

Last edited by BigD_in_FL; June 27, 2013 at 08:21 PM. Reason: word omission for clarification
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Old June 27, 2013, 07:58 PM   #10
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You have a right to say; NO

See if this sheds any light on this thread. I found it interesting but not surprising ...

http://www.youtube.com/watch?v=ueQMuEqRGPg

http://www.youtube.com/watch?v=ua-qT99vvTs

Say no and;
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Old June 27, 2013, 08:01 PM   #11
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Quote:
Are there some past court cases or any kind of papers that might give some guidelines as to what's reasonable and unreasonable?
I don't know case names off hand, but there were recent (past 10 years or so) cases related to checkpoints which would probably provide some insight. IIRC, however, there were some nuanced conflicts, ie similar cases came out with different outcomes.
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Old June 27, 2013, 08:19 PM   #12
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Quote:
Originally Posted by dakota.potts
Are there some past court cases or any kind of papers that might give some guidelines as to what's reasonable and unreasonable?...
There's been an enormous amount of litigation involving the Fourth Amendment and what's reasonable in various contexts, so there's quite a bit of decisional law on the general subject.

I'm not planning to do extensive research on the topic, but some of the consistent themes I recall are --
  • Does a person have a reasonable expectation of privacy? Arguably, if a prominent public notice is given that bags, packages, coolers, etc. of persons entering a certain place, like a public park, a person doing so would have no reasonable expectation that the contents of such things would be private.

  • Does a person have choices? Use of the park is voluntary. No one is making someone go there or be there. Arguably the voluntary use of the park is being conditioned upon any user consenting to a search of his bags or coolers. And if one refuses that worst that will happen to him is that he won't be allowed in the park.

  • Is there a reasonable and articulable public safety related purpose for the search? Of course there is.
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Old June 27, 2013, 09:00 PM   #13
dakota.potts
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So what would happen if you were to refuse a search and enter anyways? Could you get in trouble since it's still public grounds?
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Old June 27, 2013, 11:14 PM   #14
Frank Ettin
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Quote:
Originally Posted by dakota.potts
So what would happen if you were to refuse a search and enter anyways? Could you get in trouble since it's still public grounds?
You'd probably be escorted off the grounds. If you resisted or came back, you might be arrested for trespassing. At that point, you could pay a bundle in legal fees.

My best guess at this point is that given the circumstances, given that the search requirement is apparently being well publicized and given the events at the Boston Marathon, a judge is extremely unlikely to rule against the search requirement.
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Old June 28, 2013, 12:22 PM   #15
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There's plenty of time to make a huge stink out of it before the event. Find out who's behind it.
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Old June 28, 2013, 01:00 PM   #16
dakota.potts
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This is the response we got from one of Florida Carry's lawyers:

"Okay, so here's the word from our attorney, [redacted], in a nutshell. Yes, it is an infringement on the 4th Amendment. However, it is likely the courts would side with the city given the amount of leeway SCOTUS has similar government infringements in the post 9/11 era. The public gathering would probably be considered a "sensitive area" for the duration of the event, and the intrusion would be considered minor since no one is being forced to attend.

On the other hand, if a firearm is found in the bag of a CWFL holder and that person is denied entry, Florida Carry will bring suit, charging a violation of 790.33 F.S., insofar as the licenseholder is not a credible threat to security by virtue of his/her background check and the undeniable and documented law-abiding character of licensees."

Looks like Frank wins for being closest
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Old July 1, 2013, 09:42 AM   #17
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Of interest to me is that there is nothing on the sign which specifically indicates that firearms are prohibited or restricted.
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Old July 1, 2013, 10:00 AM   #18
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^^
That and alcohol which is prohibited as a general rule of the park is commonly carried in bags and coolers.
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Old July 1, 2013, 12:07 PM   #19
speedrrracer
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Quote:
Originally Posted by Frank Ettin
Does a person have a reasonable expectation of privacy? Arguably, if a prominent public notice is given that bags, packages, coolers, etc. of persons entering a certain place, like a public park, a person doing so would have no reasonable expectation that the contents of such things would be private.
In general, are expectations are governed primarily by signage? Would a sign posted on a public road saying my car can be searched alter my legal expectations?

Quote:
Originally Posted by Frank Ettin
And if one refuses that worst that will happen to him is that he won't be allowed in the park.
Did you mention this because the gravity of the "worst thing" matters in a legal determination of what is / is not a violation of your civil rights, or did you mention it for other reasons?

Quote:
Originally Posted by Frank Ettin
Is there a reasonable and articulable public safety related purpose for the search? Of course there is.
This is probably incorrect, but if someone were fighting the Constitutionality of this park policy, and saying it was a violation of their 4A rights, wouldn't the state have to meet a stricter level of scrutiny than having a nebulous safety-related reason?
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Old July 1, 2013, 01:09 PM   #20
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Quote:
Originally Posted by speedrrracer
Quote:
Originally Posted by Frank Ettin
Does a person have a reasonable expectation of privacy? Arguably, if a prominent public notice is given that bags, packages, coolers, etc. of persons entering a certain place, like a public park, a person doing so would have no reasonable expectation that the contents of such things would be private...
In general, are expectations are governed primarily by signage?...
Actually, yes. The sign communicates something and thus tells you what you can expect. If a sign says "wet paint", you have no grounds upon which to complain if you touch the thing the sign is on and get paint on your finger -- because given the information on the sign you have can have no reasonable expectation otherwise.

In the body of decisional law discussing the scope of Fourth Amendment protection and what may constitute an unreasonable search, the notion of one's reasonable expectations of privacy is a consistent theme under a variety of circumstances.

Quote:
Originally Posted by speedrrracer
...Would a sign posted on a public road saying my car can be searched alter my legal expectations?...
It should. Why would you believe the sign is lying? And there are a number of examples of such signs on public roadways being given effect.

For example, traveling between Northwest Arizona and Southwest Nevada, before the Hoover Dam bypass was opened, often involved traveling over a public highway over Hoover Dam. That stretch of public highway was posted to the effect that vehicles were subject to search, and they were from time to time searched. One would have done well to believe the signs.

For another example, vehicles can be subject to search at agricultural check-points on public highways between various States.

Quote:
Originally Posted by speedrrracer
Quote:
Originally Posted by Frank Ettin
And if one refuses that worst that will happen to him is that he won't be allowed in the park.
Did you mention this because the gravity of the "worst thing" matters in a legal determination of what is / is not a violation of your civil rights, or did you mention it for other reasons? ...
I mention it because courts have considered inconvenience and disruption as factors in determining reasonableness for Fourth Amendment purposes.

Quote:
Originally Posted by speedrrracer
Quote:
Originally Posted by Frank Ettin
Is there a reasonable and articulable public safety related purpose for the search? Of course there is.
This is probably incorrect, but if someone were fighting the Constitutionality of this park policy, and saying it was a violation of their 4A rights, wouldn't the state have to meet a stricter level of scrutiny than having a nebulous safety-related reason?
Why?

First, the right protected by the Fourth Amendment is to be secure from unreasonable search.

Second, a public safety concern over the contents of bags or coolers is hardly nebulous, especially in light of the recent events at the Boston Marathon.

Third, see post 16.
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Old July 1, 2013, 04:37 PM   #21
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It's getting to the point that unless you are in your own home expect to see more and more of these types of "rules" being applied. Of course it's all in the interest of safety and security so the majority of the public won't feel violated as maybe they should. The less it is challenged the more it will be applied.
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Old July 1, 2013, 06:11 PM   #22
speedrrracer
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Quote:
Originally Posted by Frank Ettin
Why?
I have a memory of a higher burden being placed on anything which would impose on enumerated rights. It's from an Alan Gura video discussing strict scrutiny as it applies to the 2A, and Gura said that the government simply can't toss out numbers and expect the Court to allow restrictions on enumerated rights, they have to bring more to the table.

He went on to say that strict scrutiny applies unequally across enumerated rights, with the Court traditionally giving preferential treatment to certain rights but not to others.

So I thought perhaps such higher scrutiny could apply to the 4A, although I am uncertain about the application of the term "unreasonable", which is absent from the 2A.

Quote:
Originally Posted by Frank Ettin
Second, a public safety concern over the contents of bags or coolers is hardly nebulous, especially in light of the recent events at the Boston Marathon.
Public concern is great, but that's not what I said.


I'm saying that searching private bags and coolers hoping to stop crime is by definition nebulous, since it's unclear that a net positive societal benefit will derive from the monetary costs & other resources expended searching the private property of people when there's such a low probability of encountering nefarious activity.
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Old July 1, 2013, 06:41 PM   #23
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Quote:
Originally Posted by speedrrracer
I have a memory of a higher burden being placed on anything which would impose on enumerated rights. It's from an Alan Gura video discussing strict scrutiny as it applies to the 2A,...
You might want to try actually reading both Amendments. They say different things.

The Second Amendment says:
Quote:
...the right...shall not be infringed...
The Fourth Amendment says (emphasis added):
Quote:
The right ... to be secure ..., against unreasonable searches and seizures, shall not be violated; ...
So the a determination of whether the right protected by the Fourth Amendment has been violated specifically requires a determination of whether the search or seizure was reasonable. There is considerable decisional law considering the question of reasonableness.

Quote:
Originally Posted by speedrrracer
...I'm saying that searching private bags and coolers hoping to stop crime is by definition nebulous, since it's unclear that a net positive societal benefit will derive from the monetary costs & other resources expended searching the private property of people when there's such a low probability of encountering nefarious activity.
Feel free to argue that to the judge if the occasion arises for you.
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Old July 1, 2013, 06:41 PM   #24
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Violation of 4th amendment right?

I don't see a "no guns allowed" sign so I wonder what would happen if you were searched and were carrying with a concealed carry permit? If they sent you home or arrested you this would be a violation of BOTH 2nd and 4th Amendment rights! Yes or no?
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Old July 2, 2013, 01:16 AM   #25
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KBP, see post 16 to see the opinion from one of Florida Carry's legal team.
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