Libertarian ping.To be added or removed from my ping list freepmail me or post a message here
Posted on 03/31/2006 11:51:09 AM PST by JTN
The other day, the Supreme Court did something surprising. It said that if a man stands at the threshold of his own house and tells the police they may not enter without a warrant, then -- get a load of this, willya? -- they may not enter without a warrant.
That may not sound very remarkable. After all, most of us are familiar with the axiom that a man's home is his castle, and the Constitution does have that passage assuring the right of all Americans "to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures."
But in recent years, the court has had a simple rule in disputes between citizens and police on the legality of a search: Go with the cops. It's out of character for the justices to rule that a person's privacy may impede law enforcement, as they did here.
The case arose after a Georgia woman, Janet Randolph, called police to say her husband had absconded with their son. When officers arrived, she told them he was also a cocaine user. About that time, Scott Randolph showed up, said he had taken the boy for fear she would spirit him out of the country, and denied using drugs.
One of the police, who had no search warrant, asked the husband if he could search the house. He said no. So the officer asked the wife, who obliged.
The cop went in and found a straw coated with a powdery substance. When Scott was indicted for cocaine possession, he argued that the search was invalid because he had refused consent.
The trial court rejected the claim because, it said, his wife had authority to admit police to their joint residence. But the Supreme Court took a different view: While she could have let them in when her husband was absent, he was present, and therefore had the right to bar their entry. Only if there was an emergency, such as the threat of domestic violence, could the cops enter over his objection.
That conclusion rests on common sense. "It is fair to say," wrote Justice David Souter, "that a caller standing at the door of shared premises would have no confidence that one occupant's invitation was a sufficiently good reason to enter when a fellow tenant stood there saying, 'stay out.' Without some very good reason, no sensible person would go inside under those conditions."
Chief Justice John Roberts disagreed, insisting that when two people live together, prevailing conventions allow either to have visitors over the objections of the other. Apparently he sees no limit to this principle. So when representatives of The Committee to Impeach John Roberts arrive at his house and his wife invites them in, he will consider himself powerless to keep them out.
But Roberts had reason to think his fellow justices would go along with him. They have provided the government lots of ways to get around that pesky Fourth Amendment. One is to say, as the chief justice did here, that in many situations, the government may conduct a search because a citizen has no "reasonable expectation of privacy."
You may think your bank or video store records are confidential, but the court has said that once you share information with a third party, it's no longer private. So a prosecutor embarked on a grand jury investigation can inspect them, without bothering to get a search warrant from a judge based on evidence that you've committed a crime.
The Constitution generally bars searches without a warrant, which requires a showing of "probable cause," but the rule doesn't apply if the target of the search consents to it. So the court has ingeniously stretched the meaning of "consent."
The average person, confronted with cops asking if they can search her house or car, would not realize she has a right to decline. Most people "consent" because they figure they have no choice. And the court has said that the police are under no obligation to let them know otherwise.
Still, there are limits to how far the court can go in placing the convenience of law enforcement over the language of the Constitution. It can pretend people have no expectation of privacy even when they do, and it can pretend that people routinely agree to things they have every reason to reject. But when a man stands in his doorway telling the police they may not come in, the court has to acknowledge that a citizen's right to say "no" still means something.
Scalia and Thomas also dissented. Perhaps a more in-depth look at the case is in order before passing judgement on anyone's conservative values.
***he has a right to have her home searched if that's what she wants, and the right to have it searched before scummy-hubby gets rid of the evidence.***
Agreed!
Libertarian ping.To be added or removed from my ping list freepmail me or post a message here
-------------------------------------------------------------------------------------------------------------------------------
There are marriage counselors, ministers, and legal means plenty for a spouse to remedy martial problems. Chances are - the wife was somewhat complicit to the contraband.
I know of several cases where a pissed off spouse or neighbor chose to use police bust of contraband to avenge for totally unrelated grievances. (So - who is the scum?)
There is no man so good, who, were he to submit all his thoughts and actions to the laws, would not deserve hanging ten times in his life.
Michel Eyquem, seigneur de Montaigne. (1533-1592)
If they had drugs, they had to flush them and lose the money they paid (or were going to get) ... is that so far short of sufficient punishment that we have to violate the Constitution to make sure they're further punished?
-----------------------------------------------------------------------------------------------------------------------------------------
I am further of opinion that it would be better for us to have [no laws] at all than to have them in so prodigious numbers as we have.
Michel Eyquem, seigneur de Montaigne. (1533–1592)
If he had not objected, then search would have been allowed. I don't see anything that requires permission be obtained from other occupants. Did I overlook something?
Good, good decision.
No, you didn't.
(Denny Crane: "I Don't Want To Socialize With A Pinko Liberal Democrat Commie. Say What You Like About Republicans. We Stick To Our Convictions. Even When We Know We're Dead Wrong.")
There is a reason this was a 5-3 opinion.
This ruling is a nightmare.
I am a libertarian. I believe the SCOTUS has bent far too directly to an authoritarian vision of the Constitution.
However, this is an opinion that will make it difficult for police to know when to bother with real crimes. It will cause nothing but more litigation. That is not the purpose of law, to decide on each situation as it occurs. The ideal law is a brightline rule society must follow, and those rules strictly enforced would present little or no discretion to police intent on harassment. However, here Souter says:
"W]here the defendant has victimized the third-party . . . the emergency nature of the situation is suchthat the third-party consent should validate a warrantless search despite defendant’s objections” (internal quotation marks omitted; third omission in original)). The undoubted
right of the police to enter in order to protect a victim, however, has nothing to do with the question in this case, whether a search with the consent of one cotenant
is good against another, standing at the door and expressly refusing consent."
Basically, he admits that in a domestic violence situation where there is disagreement over the search, the police may enter...but not in THIS domestic violence situation where there is disagreement over the search. In most situations where the police may confront domestic violence there are back-door ways around the search requirement--but not THIS situation. Breyer notes in his concurring opinion that "the Fourth Amendment does not insist upon bright-line rules."
But that is horseshit. Police work is based upon knowing the rules, and here, the court did not pick a rule at all. It is simply continuing the O'Connor reign of terror, now in the criminal law context. Any lawyer reading this knows damn well it'll create no certainty, just more lawyering, and that is why EVERY SINGLE LIBERAL on the court was for this opinion. It is an ABA dream opinion.
I don't agree with Roberts or Thomas 100%, but Roberts is dead-bang right in saying that:
"The rule the majority fashions does not implement the high office of the Fourth Amendment to protect privacy, but instead provides protection on a random and happenstance basis, protecting, for example, a co-occupant who happens to be at the front door when the other occupant consents to a search, but not one napping or watching television in the next room."
What does this mean for school lockers and drugs? What about all the other non-exceptions the same liberals have voted AGAINST? This is a nightmare, and again, the only people who should be happy with it are lawyers.
LOL!! Author Steve Chapman is beside himself with joy that a cocaine-using father beat the rap. Thank God the Supreme Court Hallelujah, and congratulations to Steve Chapman and the druggie. Common sense.
One thing I forgot to add: If the majority wanted to strengthen the 4th amendment, they could have. If the dissent wanted to eviscerate it, they could have. The gutless majority didn't. The gutsy dissenters didn't either, because that was not at all their purpose in dissenting. Both Roberts and Thomas point out that this is lousy law. It follows neither precedent nor common sense, and we should expect both from the SCOTUS, not O'Connorish vacillation.
Yes, let's throw out Constitutional protections for all so that we can punish more guilty people. Those Founding Fathers were clearly just druggie-coddlers.
Okay, I checked your homepage - - you're one of those anti-WOD warriors? A liberaltarian? "Uh, right, sir. Well, listen.... even though your girlfriend here says you're a cokehead and there's kids and drugs in the house, we'll go get a warrant and come back later. Just leave everything as it is, okay?"
Ok, look at it this way. My husband and I both own our home. Both our names are on the title deed and both on the mortgage.
Who's rights trump who's? He has more right to allow/disallow entry into our home than I do, or do I have more right to allow/disallow entry into my home than he does?
Look at it this way, I can not call the police and have them forcibly remove my husband from the home (outside of clear cut abuse) because I decide he's not welcome in my home anymore. He has the right to enter into his own home. He can't do the same to me either. So again, who's rights trump who?
In that case though, couldn't she produce evidence of drugs or child porn so the police could get a search warrant?
Well, hey. As long as our constitution is safe.
Why would they have to leave? Leave one officer to make sure that no evidence leaves the residence, and that no harm comes to mother or children, while a warrant is obtained. If he's a cokehead, no way he can clean the place of all residue.
That's a good point.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.