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Posted on 11/17/2006 6:09:43 PM PST by JTN
Once more into the Fourth Amendment breach, dear friends! In the pending case of Florida v. Rabb , the Supreme Court has a splendid opportunity to affirm the maxim that a man's house is his home -- and that he has a right to grow a passel of pot in his attic.
Well, not exactly. By taking the case -- or better yet, by not taking it -- the high court could strike a blow for strict enforcement of a constitutional freedom as old as Magna Carta. These are the facts:
In April 2002, an anonymous informant advised the Broward County sheriff's office that someone was growing marijuana in a residence on Polk Street in Hollywood. The informant, obviously well-informed, identified the urban agronomist as a white male, 35 years of age. Thus prepared, the cops went to the specified address, taking a sniffing dog with them. The dog's name was Chevy. His age does not appear in the record.
The posse soon observed a white male exiting the domicile and driving away. The detectives followed in hot pursuit. Ten minutes later they stopped the driver for failing to signal as he changed lanes. The culprit identified himself as "John Brown." He was "visually nervous." His hands trembled. The detectives, skilled at recognizing such indicia of guilt, peered into the vehicle.
There they saw two books on cannabis cultivation. This was suspicious. The suspect explained the books by saying, in effect, that botany was his hobby. Suddenly Chevy alerted the cops to the ashtray. A clue! A palpable clue! Cannabis! The suspect broke down. He looked away as the gendarmes extracted two marijuana cigarettes from Brown's left shoe.
The party returned to Polk Street. Fifty-five minutes had elapsed. More evidence was required. Once more into the breach! The officers looked again to Chevy, the helpful hound. Handlers led him to the front door. Tally-ho! An alert! This did it. Now armed with a search warrant, police entered the house. They found 64 cannabis plants under cultivation and three cigarettes in a safe. It soon developed that "John Brown" was in fact James Rabb. His arrest followed swiftly. Trial seemed imminent.
Rabb's counsel moved to suppress the evidence. A trial court granted his motion, and a divided panel of Florida's 4th District Court of Appeal, speaking through Judge Bobby Gunther, affirmed. Now the case is pending in the U.S. Supreme Court on the state's petition for reversal and remand. We will know before long if Rabb goes free or goes on trial.
In her opinion, Judge Gunther relied chiefly on the Supreme Court's opinion five years ago in the case of another residential farmer, Danny Lee Kyllo of Florence, Ore. Using a thermal imaging device, police scanned his house. Telltale images emerged of unusual heat. These led to a search warrant, and behold! A hundred cannabis plants were growing happily inside.
Kyllo protested that the thermal imaging violated his constitutional rights. The lower federal courts turned him down: The imaging was not an "unreasonable search" under the Fourth Amendment. He appealed. In an unusual alignment of justices, the Supreme Court reversed, 5-4. Justice Antonin Scalia spoke for a majority that included Justices Souter, Ginsburg, Breyer and Thomas. In dissent, Justice John Paul Stevens spoke for Justices Kennedy, O'Connor and Chief Justice Rehnquist. It was a lineup never seen before and never to be seen again.
Now, getting back to the pending case in the high court: As a matter of Fourth Amendment law, is James Rabb's house in Florida to be equated with Danny Kyllo's house in Oregon? As the admissibility of evidence is weighed, is a dog's nose like a thermal imager?
Dogs' noses first appeared in Fourth Amendment law in United States v. Raymond Place in 1983, but as Judge Gunther pointed out in Rabb's case, the canine search in Place was a search in Miami's public airport, not in a private home. Rabb had "a legitimate expectation of privacy." If detectives had not summoned Chevy to the door, they likely "would not have detected the odor of marijuana emanating from the house."
"Thus the use of the dog, like the use of a thermal imager, allowed law enforcement to intrude into the constitutionally protected area of Rabb's house. ... The use of such a technique by law enforcement constitutes an illegal search."
Without evidence from the residence, the Florida cops would be left with a pitiful portion of pot for a federal judge to pass on. Give it up, I'd say. Let us concentrate on crime that truly matters.
(Letters to Mr. Kilpatrick should be sent in care of this newspaper, or by e-mail to kilpatjj@aol.com.)
Ping
Very nice argument. I predict the Supremes will split along traditional 'dog people' vs 'cat people' lines.
I'm no lawyer, so pardon my ignorance...
Is there a legal basis for "a legitimate expectation of privacy"? In the Constitution? BOR? Precedent? If so, I also agree with Scalia et al.
btw, sometimes it seems that half the FReepers are lawyers! Mebbe it's skewed perception based on my thread preferences, I dunno.
The sad fact of the matter is that I was dealing with 20-somethings who were more brainless than the average 20-somethings, and probably will be for life. They're on title to the property along with the parents and friends who are 1960s throwbacks.
Lucky for me I hadn't ventured onto some Mexican cartel farm, or I could have been shot.
These people are wasted losers.
If some little old lady wants to grow a marijuana plant in her back yard because it helps with her arthritis, I guess I really don't care. But I don't see anything good coming from a life dedicated to this stuff.
55 minutes after a lawful arrest at a routine traffic stop--thank you almost unanimous SCOTUS (no 4th Am. protection in your car) the police have a warrant to enter to search a home.
Bridge to far.
UNN--HUUH
Now if you were smoking pot in your backyard, and you had installed an eight foot high stockade fence, the cop has to get a warrant to look over the fence. You have an expectation of privacy there.
This case is bothersome because the sheriffs could have got a warrant if their evidence was as good as this informant seems to be. They could have used the thermal imaging, or visual surveillance, to gather enough evidence to enter the house and search. They seem to have jumped the gun here. They also could have gotten a warrant after they busted the guy in his car, and they didn't do it. Although it is a procedural error, it is an error they are not allowed to make. They know this. I think they screwed up.
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In fact, together they are not enough.
Finding pot in his car...a small amount...is probably not enough either. It's a misdemeanor and would most likely not result in a warrant to search his home anymore than a DUI would (in MANY cases a DUI is a felony too).
For a search warrant to search INSIDE the home, the cop would have to be allowed in the home for another reason and detect pot...or it would REQUIRE accusation from an indentified informant who is willing to testify that they have PERSONNALLY witnessed the commission of a crime (growing plants).
That's the law...whether it's enforced that way is another story.
I know in the Portalnd, OR area cops will go to the door of "known" growers and knock...ask to search...tell growers that it'll "be alot earsier on them if they just comply and agree" etc. Those who agree go to jail. Those who refuse just get a scare and time to shut down. They don't get busted.
Are you sure that this is the case? Because I live in a rural pocket and there are police helicopter fly-overs every few months, looking for pot cultivators. These flyovers is how the police found several acres of marijuana growing in the nearby hills.
As far as I am concerned, possesion of small amounts of pot should be legal. (And I am saying this, even though I don't smoke the stuff.) I think that it is a waste of time and money (taxes) hunting down these small cultivators & users and prosecuting them -- time & money better spent on hunting down violent criminals and hard drug providers & users. I have heard all the arguments re marijuana as "a gateway drug", but you know the most common gateway drug is actually alcohol. And alcohol has been proven to be linked much more substantially with violent crime and death, than has marijuana.
Meanwhile, you have small annoying cases like this one which could set unfavorable precedents that make it much more difficult for police to arrest real criminals. It's absolutely not worth it!
Those who grow in their home have many protections. If nobody ever sees it...and they don't commit ANY other crimes which would allow for a search warrant (like selling or possessing outside the home any amount which would constitute possession with the intent to distribute) they're relatively untouchable. Power bills, thermal imaging etc. are not sufficient to obtain a warrant if the judge follows the law.
That said, many judges don't and many pot growers get scared and fail to insist upon protecting their right against unreasonable search ans siezure.
DUI would not result in a search because possession of alcohol is not a crime in itself. The combination of the tip, surveillance, and the arrest with the vehicle might have done. Are you an attorney or a police officer? I am honestly curious.
I think we would be best served by legalizing the stuff and taxing it, using the money to fund other needed programs and removing potheads from prison cells to make room for violent criminals. Alas, we are in the minority.
Yo asked: Is there a legal basis for "a legitimate expectation of privacy"?
Indeed there is. It goes back to English Common Law. Perhaps earlier. Since common law is one of the bases of our Constitution, the legitimate expectation of privacy, especially in one's home, is most assuredly part of our culture and heritage AND LEGAL SYSTEM. Read the fourth amendment. Further, the old adage about a man's home is his castle, comes from the Common Law and there is a couplet which I cannot remember in its entirety, but goes to the effect that a man's home, be it ever so vile, is inviolable to even the King and his men, without a writ (warrant). So we CAN expect privacy in our own homes, absent a warrant issued with GOOD, SOLID reasons, not just because a damned dog smells something or alerts just to please his handler.
I don't agree.
I don't see any reason to tax it or any other plant.
Picture the money hard core potheads will save being spent in the open market economy, where it will be taxed at least two more times than it is now. That would be plenty of benefit to the government (though not one to which it would be particularly entitled). If anything, legalizing it should result in a tax cut.
Besides, I don't smoke pot, so I really don't care what anyone pays for it. 8<)
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