So pursuant to the previous discussion I've been reading the oral arguments before the Supreme Court in U.S. v. Montoya de Hernandez, because it's rare that I be forced to yield an argument and besides, reading elevates the spirit.
It's a good read, generally, the gist of it being that some illiterate Columbian woman showed up at the US border wearing homemade plastic undies (two pairs) lined with paper towels, very little luggage, no friends or family inside the country, five grand in cash and a plan to buy products to stock her family shop back in Columbia by taking a taxi trip to J C Penny. That was it.
She passed Immigration but Customs detained her, and as she wouldn't submit to an X-ray they held her for about a day waiting for her to take a shit. Which she tried her best not to do, and managed not to do, until finally a judge signed off on a warrant, a doctor stuck his finger in her rectum and pulled out a condom full of cock...aine, and then that was that.
The contention is that the state didn't have the right to hold her, as there was no probable cause, and so all the evidence should be thrown out on the fruits of a poisonous tree doctrine. The district court rejected this argument, the 9th Circuit quashed and remanded that decision, the Supreme Court took up the matter on appeal.
It's an old paper document which was obviously OCR'd, and it contains plenty of T instead of Y, B/b instead of H/h and so on. Not illegible by any means, but certainly amusing. Consider :
QUESTION: Are you aware of any statistics that demonstrate how often someone detained at the border for -- on suspicion of alimentary canal smuggling is in fact found to have been smuggling?
MR. HORSTMAN: Yes, Your Boner. If you have my brief, if you’d refer to footnote number 88 for a moment.
This has got to be the most amusing thing I ever read in court papers, ever.
Other than that the thing is worth reading for the legally minded, if nothing else then for the benefit of seeing exactly where invididual rights and protections against statal overbearing were in the US of 1985, and easy comparison with 2013. I'll leave you with but one quote :
Mr. Chief Justice asked whether the length alone was the intrusiveness. It wasn’t just the length alone, It was the length and the circumstances of the detention. She was placed in a room with three law enforcement officers, which in Royer this Court held to be the essence of imprisonment.
The government’s statement that she was simply being held until the next available flight is refuted by the facts of what the government did. It they really bad meant to deport her, which incidentally, customs has no statutory or regulatory authority to do, they would have simply turned her back over to Immigration where she would have had the rights that Justice O’Connor enumerated recently in Placensia and Immigration would have had to follow her procedural due process rights.
I submit to you, Justices, ‘that the government knew she was not deportable, and therefore, this language about holding her for the next available flight is nothing wore than a charade and a subterfuge.
How do I know that? I know that because of what they did. They didn’t just put her in a room. They observed her. Their intention at that time was to obtain additional incriminating evidence that would support a court order -- the very thing that this Court has held in Dunaway, Davis and Bayes is improper, because the essence of a police state is to arrest someone without probable cause, bold them in custody incommunicado, and attempt to elicit incriminating information. And that is precisely what happened in this case.
This, mind you, argued in the case of a woman that was absolutely and certainly guilty in fact. Our beleaguered friends still left on the battlements over there today encounter serious difficulty even registering these types of arguments in cases of perfectly innocent victims of a berserk statal apparatus, let alone prevail on their basis.
The distinction between things as they were sixteen years before 2001 and things as they are twelve years later couldn't be more drastic. I doubt the continuum argument as presented in the linked article actually has any ground to stand on, actually. A lot has changed in the interim, and none of it for the better. A lot has changed, and enough so to consider the two things different in kind, not merely in degree.