Up Sucker Creek

Up Sucker Creek
Photo Courtesy of the Lake Oswego Library

Thursday, July 7, 2016

Politicizing our trees and our rights

Statism in Lake Oswego
In political sciencestatism is the belief that the state should control either economic or social policy, or both, to some degree.[1]  Wikipedia

Local Government continues its reach into our lives and property - to control our behavior and modify our Constitutional rights without care for the citizens.

Lake Oswego is trampling on the Fourth Amendment - the right to deny warrantless searches on private property.  Why?

This waiver is included in the Tree Removal Application.  There is a signature line that follows the statement alnowledging the applicant agrees with it.
I grant permission to City of Lake Oswego employees to enter the above property to inspect the trees requested for removal and investigate any trees that may appear to have been already unlawfully removed. I agree to restrain any dog(s) on inspection day. 
Signing this waiver gives the city the right to do a warrantless search of your property.  The Fourth Amendment protects citizens from this, but not if a person has signed a waiver giving up this right.

Why does the city need to investogate (search) for violations that may have occurred in the past in order to execute a permit to cut a tree now?  It doesn't.  Municipal codes allow the city (City Manager and Staff) some broad powers.  One is required to use the city permit application, but also in the code appears this special power:  "Any other information reasonably required by the City".   This waiver is not reasonable or necessary!  

Who calls the city on these practices if not the citizens?  Who stops this abuse of the city's regulatory authority?  Obviously no one in City Hall, including the Mayor and City Council who had an opportunity to do something about both it - the waiver and the permission for staff to add requirements to the permit process - on Tuesday, 7/5/16, but let it pass without a whisper.  (They were all informed about this issue prior to City Council Meeting.)
Where rights secured by the Federal Constitution are involved, there can be no rule-making or legislation which would abrogate them." Miranda v. Arizona, 384 US 436 (1966)
Is this legal?  If an applicant finds the waiver to be objectionable, is he/she signing it voluntarily, or under duress?  Can the state require one to give up one right (protection against warrantless searches) in order to exercise another (excercising their property rights)?  What would the city do if you didn't sign the waiver?  

Disclaimer:  I am not an attorney.  I am not offering legal advice or a legal opinion.  This is a commentary of a legal subject and I try to provide information from a reliable source.  I strongly encourage readers to do their own research and consult an attorney about their own situation should the need  arise. The website below has a number of links and there are many other sources of information.

The Fourth Amendment  (Cornell Law School)
The Fourth Amendment of the U.S. Constitution provides, "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

States can always establish higher standards for searches and seizures than the Fourth Amendment requires, but states cannot allow conduct that violates the Fourth Amendment

The protection under the Fourth Amendment can be waived if one voluntarily consents to or does not object to evidence collected during a warrantless search or seizure.

search or seizure is generally unreasonable and illegal without a warrant, subject to only a few exceptions.

To obtain a search warrant or arrest warrant, the law enforcement officer must demonstrate probable cause that a search or seizure is justified.  An authority, usually a magistrate, will consider the totality of circumstances and determine whether to issue the warrant.

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