# Firearms Prohibition Orders



## Warrigal (Oct 16, 2016)

One way to get guns out of the hands of crime gangs and to keep them out. It involves stop and search without a warrant for targeted individuals and their families. A loss of a certain amount of freedom for some to make things safer for the general population.



> *Firearms prohibition orders increase by 200% as gun crime falls in Sydney *
> 
> 
> Ava Benny-Morrison
> ...


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## Butterfly (Oct 16, 2016)

I feel certain that this warrantless searching would be unconstitutional as all get-out over here under the Fourth Amendment.  Our courts have been quite strict in enforcing the Fourth.


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## Robusta (Oct 16, 2016)

Wow!!!! Guilt by association, warrantless searches.  Can be based on untested suspicion.  Sounds totalitarian.  All this and yet Australia still has a gun problem.

What is the process for LE to get an FBO on a citizen?  

I think I just lost a bit of the admiration I have always had for your country.


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## Jackie22 (Oct 16, 2016)

Compared to the US, Australia does not have a gun problem.

"Safer for the general population" is most important.


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## Warrigal (Oct 16, 2016)

I'm not really sure what the process is in detail but the police can make a case for declaring some groups to be illegal gangs based on a history of drug or weapons trafficking or violence and mayhem. This has happened with certain bikie groups and some Middle Eastern gangs, one of which was mentioned in the article. Brothers for Life have been linked to drugs, shootings and gang rapes. 
Members are not permitted to congregate wearing their club/gang colours and some or all of them are subject to FPO orders. If an FPO is in operation then the police are permitted to stop at search without obtaining a further search warrant. Just as a search warrant requires judicial approval, so does the FPO but it is not a one off approval. Like an apprehended violence order, it remains in effect until it is challenged or lifted.

I'll try to clarify the conditions.


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## tnthomas (Oct 16, 2016)

Warrigal said:


> I'm not really sure what the process is in detail but the police can make a case for declaring some groups to be illegal gangs based on a history of drug or weapons trafficking or violence and mayhem.



This has been done before in the U.S.; unsure if any court challenges have modified the practice.


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## Warrigal (Oct 16, 2016)

Some US states do have stop, question, frisk policies though without the need for a search warrant. 
Just paperwork to be submitted afterwards.


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## WhatInThe (Oct 16, 2016)

Warrigal said:


> Some US states do have stop, question, frisk policies though without the need for a search warrant.
> Just paperwork to be submitted afterwards.



It can be used as 'a' tool but there have been too many problems/complaints of abuse and is a politically uncorrect measure at this time. And as noted warrantless searches are not acceptable.  Many jurisdictions have even stopped the confiscation of personal property without a criminal trial as well.

 Arbitrary stops and/or detainment are what criminals do, that's why many countries put provisions in their laws to prevent it. Police check points tend to be found in totalitarian regimes.  Today they are stopping and detaining for guns. what's tomorrow? That's a dangerous and extremely slippery slope.


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## Carla (Oct 16, 2016)

It is a drastic step and I would hate to see the US do this, but there are citizens that deserve the right to move freely without being afraid of someone roaming the streets with a loaded firearm. There are children that deserve the right to play outside and parents that should feel comfortable with their safety. Going to school or shopping at the mall should not present the need for our "vilgence", it should be safe. I think in this country, the right to bear arms has been abused and I strongly disagree with the right to go about with open carry or a concealed weapon without special permit. I do believe we have a right to own weapons and even use them if their life or the lives of loved ones are in jeopardy. AKA "self protection". If you want to practice shooting, if you are a hunter--we have this right to be move about in society legally with a firearm.

I used to advocate the NRA, as I believe this is an important right we don't want stripped away. We will lose that right, I'm afraid, if we continue along the path that others have chosen. Some people actually believe that murders only happen with guns that are not registered properly, as if legal guns do not fire bullets. That is about as weak as the argument that pain killers can not cause addiction to the patient in pain. To all of those who think threatening someone's life with a gun is perfectly OK, I say to you, you deserve to be stripped of that right indefinitely. For anyone that fires in a public area where it jeopardizes the safety of others-mandatory jail sentence. Stolen guns or illegal possession, same deal.

As far as the ability to stop and search anyone, well we do have a problem with that in our country. This has even become a campaign issue, but the problem or objection is often racial profiling and we certainly have a lot of problem with that. That would be a drastic step in trying to resolve an issue that should be able to be controlled with stricter gun laws. I do like the mandatory training, that isn't too much to require. Backround checks--automatic. It will not stop terroristic threats but it may help to curtail at least some of it. We all have rights in our country, and I don't denounce anyone's right to own a firearm but I don't want to feel threatened by that right as I too, have a right to a peaceful existence. For those who take issue with that, I say, be angry with the many who have chosen to abuse that right, not with those seeking a restoration of peace. Don't blame those who have had their own rights whisked away and have lost family members and friends and their peace of mind.


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## Butterfly (Oct 16, 2016)

Warrigal said:


> Some US states do have stop, question, frisk policies though without the need for a search warrant.
> Just paperwork to be submitted afterwards.



Not just generally -- they do not.  The Fourth Amendment is federal constitutional law and is a VERY big deal.  States cannot enact laws or policies that violate the Constitution.  To stop and search (including frisk) is only allowed in exigent circumstances, like reasonable suspicion that the detainee has committed a crime, or is engaged in criminal activity, or in the course of an arrest, or parolees or probationers.  In no state can police  just stop and frisk people because they think they are members of a group or gang, or have family members in prison, etc.  Not in the US, they can't, because of the Fourth Amendment.

Check your facts.  The Fourth Amendment has been litigated to death in our courts, and is a frequent flier in our Supreme Court.


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## Carla (Oct 16, 2016)

Butterfly said:


> Not just generally -- they do not.  The Fourth Amendment is federal constitutional law and is a VERY big deal.  States cannot enact laws or policies that violate the Constitution.  To stop and search (including frisk) is only allowed in exigent circumstances, like reasonable suspicion that the detainee has committed a crime, or is engaged in criminal activity, or in the course of an arrest, or parolees or probationers.  In no state can police  just stop and frisk people because they think they are members of a group or gang, or have family members in prison, etc.  Not in the US, they can't, because of the Fourth Amendment.
> 
> Check your facts.  The Fourth Amendment has been litigated to death in our courts, and is a frequent flier in our Supreme Court.



They were doing it in NY but I believe they were forced to stop this practice. I don't think it should be done, however, it they have reasonable cause to suspect something very serious such as murder or terrorism, I would have a hard time believing anyone would object, do you? I think the cameras were being put in place to keep tabs on how the police are handling these situations. They should not be permitted to stop anyone randomly as they were in NY. They claim it did reduce some of the gun violence but they also say there were a lot stopped due to racial profiling and subjected many people to be treated like criminals.


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## Warrigal (Oct 16, 2016)

I understood that Stop, Question, Frisk applied to New York

 This scholarly paper talks about temporary detention/arrest and reasonable suspicion at length.



The paper is very long and talks about issues such as the difference between arrest and temporary detention but I haven't read it all. Perhaps someone could explain why stopping a person known to be under a firearms prohibition order imposed by a court to search for illegal firearms would be a human rights issue. 

http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=1818&context=flr

It would seem to me to be preferable to what we see in the news too often which seems to be stop and shoot because the suspect may be armed.


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## Butterfly (Oct 16, 2016)

Warrigal said:


> I understood that Stop, Question, Frisk applied to New York
> 
> This scholarly paper talks about temporary detention/arrest and reasonable suspicion at length.
> 
> ...



This is really not much different than what the Constitution provides; note that it specifies a reasonable suspicion that a crime is being or has been committed, etc., not just random stops of persons believed to be belonging to gangs or anything like that.

Our Patriot Act changed some of this a little, but not much.  You can't mess with the Fourth Amendment.  I bet the NY law got slapped down because it required the person to state what they are doing "there."  If memory serves, that would violate the Fifth, against self-incrimination, as we have the right to remain silent, and silent means just what it says.  

It's a CIVIL rights issue because the police can't go around stopping you for no reason at all -- that's targeting and harassment.   Now, if they have reasonable suspicion to think you're committing a crime, that's a different matter; but they don't just have carte  blanche to go around stopping convicted felons (who are barred for life from possessing firearms) to see if they MIGHT have a gun.  ALL Americans, even those who have been convicted of a felony, have the right to be free from unreasonable search and seizure.


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## mitchezz (Oct 16, 2016)

I'm happy to give up a few of my freedoms if it means it is less likely I'll be gunned down going about my daily business and kids can expect their schools to be gun free zones. I think it's strange when a clause of the Constitution is of more concern than the unwarranted deaths of the citizens whose "freedom" it is supposedly protecting.


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## WhatInThe (Oct 16, 2016)

mitchezz said:


> I'm happy to give up a few of my freedoms if it means it is less likely I'll be gunned down going about my daily business and kids can expect their schools to be gun free zones. I think it's strange when a clause of the Constitution is of more concern than the unwarranted deaths of the citizens whose "freedom" it is supposedly protecting.



Being arbitrarily stopped by police is not freedom which is being protected. In the US many don't even want DUI (driving under the influence) check points even though drunk drivers unfortunately kill thousands. Most people don't want random drug testing in schools or workplaces even though drug problems kill thousands. Freedom: especially from the government is valued as much as a potentially reduced risk. And again, now it's guns they're looking for, it could very easily escalate or expand to other things including the seemingly harmless. 

If one wants to give up their freedoms that's their choice, for themselves, not others. It should be anyway.

Can't live in a bubble and alleviate every single potential danger.


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## Warrigal (Oct 16, 2016)

How odd from the perspective of an Australian. As a people we accept random breath tests for alcohol, drug tests for elite athletes, sniffer dogs at airports, scanners to enter certain buildings such as courts and parliaments, apprehended violence orders for people who are a threat to others and firearms prohibition orders for known violent criminals.

In every one of these examples there is an element of stop and search but it is for the common good. 
We do not feel less free - quite the opposite in fact.


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## WhatInThe (Oct 17, 2016)

Warrigal said:


> How odd from the perspective of an Australian. As a people we accept random breath tests for alcohol, drug tests for elite athletes, sniffer dogs at airports, scanners to enter certain buildings such as courts and parliaments, apprehended violence orders for people who are a threat to others and firearms prohibition orders for known violent criminals.
> 
> In every one of these examples there is an element of stop and search but it is for the common good.
> We do not feel less free - quite the opposite in fact.




Some might call that a nanny state and/or mentality. Freedom is different from existence, survival and/or safety. In the US especially people accept certain risks and/or way of life. Setting aside guns if one goes out on the roads and highway people know there are drunk drivers, texting drivers, careless drivers etc. One would rather deal with those POTENTIAL hazards rather than be stopped arbitrarily by the police. Back to guns, people know guns are used in killings but again freedom out weighs the chance they might get shot.

 Also when the government takes over too many functions safety or others it starts taking away from individual responsibility and the incentive to learn how to deal with some dangerous situations on their own not relying on a law or government agent to rescue them.

And  again now it's guns, what is next? When does it end?


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## Warrigal (Oct 17, 2016)

So, are you telling me that none of the examples that I mentioned are used by law enforcement in the US?

By the way, AVOs and FPOs are not arbitrary. Both require a court order and can be appealed.

RBT and sports drug testing is arbitrary in that it is random, not targeted.
Scanning is not arbitrary  because everyone is subject to the sniffer doggies or the metal detector at the airport.


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## WhatInThe (Oct 17, 2016)

Warrigal said:


> So, are you telling me that none of the examples that I mentioned are used by law enforcement in the US?
> 
> By the way, AVOs and FPOs are not arbitrary. Both require a court order and can be appealed.
> 
> ...



In many government buildings one is subject to search but people go to government buildings to handle specific business. When one is driving or walking on the street in public that would be an arbitrary or random stop by police if not being chased as a criminal. Stop and frisk has lead to abuse in many cities and in today's socio political climate that would be considered a police state tactic all the way as it is already too close. 

At airports it's not just sniffer dogs and empty your pockets they actually make you take off your shoes and belts. I've been set aside for enhanced search and wanding because my dental work set off hand held scanner anytime it approached my upper chest. My carry on got a second search including a chemical detecting wand.

If there's a warrant the police would be executing a search warrant.


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## Robusta (Oct 17, 2016)

Inmost of the examples given, such as entering a government building, driving,applying for certain positions; you have voluntarily waived your rights under the fourth amendment.

I don't know what some of you guys think America is like. The thought of being shot or involved in any kind of violence at all is not even in my mind when I leave the house.

I do have concerns about meeting a drunk or inattentive driver,but that is my one and only safety concern.

In 61 years of life in our nation I have never seen a firearm used in an inappropriate manner and never have heard a shot outside of a legitimate pastime.

Shessh Louise folks, We are not a war zone.


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## SeaBreeze (Oct 17, 2016)

WhatInThe said:


> Also when the government takes over too many functions safety or others it starts taking away from individual responsibility and the incentive to learn how to deal with some dangerous situations on their own not relying on a law or government agent to rescue them.
> 
> And  again now it's guns, what is next? When does it end?









Robusta said:


> I don't know what some of you guys think America is like. The thought of being shot or involved in any kind of violence at all is not even in my mind when I leave the house.
> 
> I do have concerns about meeting a drunk or inattentive driver,but that is my one and only safety concern.
> 
> ...



Same here Robusta, the exaggerated overly-dramatic headlines that get repeated for weeks on end, and brought up yearly like an anniversary celebration to be top headline for another week make us look like a war zone.  But fear sells, follow the $$$.


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## WhatInThe (Oct 17, 2016)

Robusta said:


> Inmost of the examples given, such as entering a government building, driving,applying for certain positions; you have voluntarily waived your rights under the fourth amendment.
> 
> I don't know what some of you guys think America is like. The thought of being shot or involved in any kind of violence at all is not even in my mind when I leave the house.
> 
> ...



That's the thing. Yes death or injury by gunshot would be horrifying. But so are other numerous ways to die or get injured. I'm more worried about the person who decides to use a gun in a criminal manner. Taking the gun only removes a tool.  Same for suspending a drunk drivers license. The dangerous and/or criminal people always seem to find the tool of their destruction.

I can't emphasize this enough these stops or stop & frisk type stops are the proverbial slippery slope. Everyone MIGHT be on the same page today but as time goes on the stops could be used as a tool for something else. 

To top it off the suspect in the original post was/is subjected to these searches because of his family associations? Guilt and/or punishment by association?


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## Warrigal (Oct 17, 2016)

Robusta said:


> I do have concerns about meeting a drunk or inattentive driver,but that is my one and only safety concern.
> 
> In 61 years of life in our nation I have never seen a firearm used in an inappropriate manner and never have heard a shot outside of a legitimate pastime.
> 
> Shessh Louise folks, We are not a war zone.



And yet there is a discussion going on elsewhere on this forum that suggests that all is not well, nor very safe.

https://www.seniorforums.com/showthread.php/25490-Something-That-Really-Scared-Me-Last-Night


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## Susie (Oct 17, 2016)

Yet another righteous gun debate!
Ugh--boring, boring!
Why not have "wagers" on who can kill the most rabbits, pigeons, rare birds, and also people! A GOLD STAR for the winner?
Wouldn't that spice up these "overly earnest"
gun discussions?


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## Warrigal (Oct 17, 2016)

Well, Suzie, it actually started out as a discussion about striking the balance between conflicting values of personal freedom and personal safety.



> One way to get guns out of the hands of crime gangs and to keep them out. It involves stop and search without a warrant for targeted individuals and their families. *A loss of a certain amount of freedom for some to make things safer for the general population*.



This post is in the spirit of the OP, recognising that it is more than just "another righteous gun debate". 




In the course of the discussion my attention has been drawn to the Fourth Amendment of the Bill of Rights, something that I was not familiar with before. I do not think that courteous discussion is ever pointless is even one person becomes better educated in the process.

Frequently I hear that law abiding gun owners are not the problem; that it is the criminals who have their illegal guns who are doing all the damage. My OP raised an issue of one way that criminals may be divested of their illegal weapons. I raised the NSW situation to see what the reaction would be. I am pleased to say that the responses have been illuminating.

If you have something to say about the NSW legislation that is primarily aimed at rogue gangs, please feel free to contribute.


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## Butterfly (Oct 17, 2016)

Once it is OK to violate the civil rights of one group of people, it is OK to violate the rights of all of us.  It is, indeed, the proverbial VERY slippery slope.  Who gets to decide what groups are subject to such searches?  What if someone gets the idea that people over 70 are banding together to do some nefarious deed -- do we then stop and search everybody over 70?? 

It is NOT OK to stop and search someone who MIGHT be the member of a group suspected of planning something; we don't even do that with people who are suspected of having links to ISIS, until law enforcement has a REASONABLE suspicion that that person is so connected or that they are planning something.  That's not the way individual liberty works.  You cannot target all members of a group because one member of that group has been convicted of a crime.  You can't stop and search somebody's 90 year old grandmother because her grandson is in prison for running guns.  

Yes, it is probably one way that criminals might be divested of their illegal weapons, but in doing so you would be violating the rights of a whole bunch of innocent people, and how does one determine who said criminals are if they are just driving down the road?  That is not the way freedom works in this country.  A person is presumed innocent by the law until proven guilty in a court of law.  And conviction of a a crime does not give police the right to hassle you every time you turn around for the rest of your life, nor should it.  Police have to have reasonable suspicion of wrongdoing before they can even stop you.  That has been well litigated in our courts and so has the meaning of "reasonable suspicion" and sham stops are not tolerated.

I would hate to live in a country where I could be stopped and searched and have a bunch of cops rummaging around in my car or my purse just for the fun of it to see if I just MIGHT have evil intentions.  That's just wrong on so many levels.


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## Warrigal (Oct 17, 2016)

The civil libertarians over here would agree with you Butterfly. It is a very delicate balance and when it tips too far one way or the other there is bound to be a correction because of the fuss that is made, including in the courts.


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## Butterfly (Oct 18, 2016)

Our courts have been very clear on this issue, except for clarification and very small things, for as long as they go back.  The Fourth Amendment is the ultimate arbiter.


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## Robusta (Oct 18, 2016)

I spent a career in sensitive positions that always required random drug testing.  I submitted because I had a family and it was an excellent job with a good retirement.
I had many people tell me that it was important for me to have a test because I carried weapons as part of my job.  I always countered with the analogy that all teachers should be required open their computers just in case they are child molesters


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## Warrigal (Oct 18, 2016)

Moving the thread in another direction now.

We had a referendum in 1999 to decide whether Australia should become a republic. It failed for several reasons but the main reason was the model that was being put forward. It was a minimalist model where the governor general's role would be renamed President and there would be no popular vote for a presidency that would be essentially ceremonial only. Parliament would be the real power and legislative body. Many people objected because they wanted to be able to vote for the president rather than have someone appointed by either the prime minister or some committee. Although I am in favour of becoming a republic, I confess that I voted NO for this reason but have since changed my mind. After watching the 2016 presidential election in US, I am more convinced than ever that we should stick to a Westminster model of government.

Another issue that was raised at the time is whether Australia should have a formal bill of rights. Our constitution is a very dry document that spells out the relationship between the commonwealth and the states. It is silent on rights of citizens which are left to the various parliaments to enshrine into law. Since Federation in 1901, it has been quite difficult to change the constitution because it requires a vote of all citizens and the Yes case for change must be supported by a majority of voters overall and in a majority of states  i.e. in 4 out of 6 states. Most referendums for constitutional change fail unless there is bipartisan support from both sides of parliament. Responding to social change is much easier to do via parliamentary processes than by constitutional change.

Having a bill of rights sounds attractive and from time to time it is suggested that Australia should have one attached to our constitution but senior members of the legal fraternity usually advise against this move on the grounds that it would remove flexibility from law making processes and become more and more of a hindrance to progress over time. What we are currently considering is a preamble to the constitution that will recognise our indigenous peoples as the first people of Australia. It will be a very symbolic statement without having any legal weight lest it bind the nation in the future to something that might no longer possess any current cultural value. Even this benign ambition will have a hard time being passed at a referendum due to the reluctance of voters to amend the constitution. There is always a tendency to distrust the politicians that favours the NO vote.

Not being all that familiar with the US Bill of Rights, I ask this question - having been framed in the eighteenth century, in the days of horse and buggy and oil lamps, is the language expressing the rights of citizens adequate for the twentyfirst century and beyond and do they still mean what the authors of the document wanted them to mean? 

This is a serious question in my mind and I would appreciate serious, reflective responses.


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## Butterfly (Oct 18, 2016)

Courts have taken the position that the Constitution must be "strictly construed," which means it is taken to mean exactly what it says, no more, no less, regardless of when it was written.  To change what the Constitution means would mean that it would have to be amended, a long and formal process which takes forever and takes ratification by the states.  We don't have the latitude to change what it says at will when we find it expedient.


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## Warrigal (Oct 18, 2016)

> Courts have taken the position that the Constitution must be "strictly construed," which means it is taken to mean exactly what it says, no more, no less, regardless of when it was written.



Always? No examples of any interpretations of the first ten If amendments by the Supreme Court that were not strictly black letter law?
Have some interpretations of the Constitution ever been reversed at some later appeal?

I know that I am asking difficult questions but law is seldom a simple matter. If it was a simple matter then there would be no need of the SCOTUS in the first place.


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## Susie (Oct 20, 2016)

Thank you, Warrigal, for your academically charged response.
I must admit that the balance between conflicting values of personal freedom and personal safety escape me, slightly beyond my comprehension level.
Sadly, I don't know the Fourth Amendment. (but will look it up later).
Maybe a genetic adjustment for those who can't control their murderous, killing instinct, would solve the problem?
(Or has this already been tried in Nazi Germany and deemed a ghastly, abhorrent practice?)


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## Robusta (Oct 21, 2016)

The fourth amendment protects us from unreasonable search of our person or property.  Basically means that you can not be searched unless the police get a warrant from a judge.  Now if you are actively engaged in thre commission of a crime, naturally the police can search you the. 

If you are driving your gun running cousins car, then no they can not search.

If your entire family is in prison,police can not single you out for special attention.

Yep sometimes it helps the bad guys get away, but government needs a leash as they given an opportunity will always overstep their bounds,


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## Butterfly (Oct 21, 2016)

Robusta said:


> The fourth amendment protects us from unreasonable search of our person or property.  Basically means that you can not be searched unless the police get a warrant from a judge.  Now if you are actively engaged in thre commission of a crime, naturally the police can search you the.
> 
> If you are driving your gun running cousins car, then no they can not search.
> 
> ...



I completely agree.  I think the framers of the Constitution drafted it that way on purpose -- we don't want or need the government in our faces every time we turn around, and we don't want our liberty eroded by violations of our right to life liberty and the pursuit of happiness.  Once we start allowing that, it's the proverbial slippery slope to a police state.


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