Hard cases make bad law
Feb. 26th, 2014 09:57 am![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
drwexSome of you know I read Supreme Court decisions for fun now and then. I haven't yet had time to read the 5-3 decision in Fernandez v. California, but I've read the summaries. This case has expanded police powers in ways that I think are potentially dangerous.
The case involves a situation where two people were present in a home. The police asked for permission to enter; one of the two people said yes but the other objected. Supreme Court precedent from 2006 said that in such cases the police needed to secure a warrant before searching. However, in this case they did something different: they arrested the man, and an hour later they returned and re-asked the woman who again consented to the search.
Today's ruling says that a person who is arrested and taken away is the same as someone who is absent and therefore cannot legally object to the search. His prior objection was rendered null by his arrest (or so the majority claims). I think that's a big problem.
To begin with, it gives police tremendous incentive to arrest people who are non-consenting. Even if they don't file any charges, all they need to do is lay an accusation, bundle you into a patrol car and presto they've removed your objection to a search. Why bother with that pesky warrant procedure when all it takes is a few minutes to get someone out of the way? (If you think you can't be arrested for standing on your front step telling police "No, I do not consent to a search of my home" boy do YOU not understand how the system works.)
I said this case was "hard" in part because the facts show the defendant in a bad light. He was arrested for a robbery - the police had been in pursuit when he entered the home - and when they knocked the other occupant was a woman who showed visible signs of physical abuse. The police seem quite justified in removing him. But given that an hour had passed, why couldn't they go before a magistrate judge and get a warrant?
I find it significant that the three objecting SCOTUS judges were the women on the Court. You might expect them to side naturally with the battered woman in this case, who did give consent to the search. I'll be interested to see what Ginsburg wrote in her dissent.
The case involves a situation where two people were present in a home. The police asked for permission to enter; one of the two people said yes but the other objected. Supreme Court precedent from 2006 said that in such cases the police needed to secure a warrant before searching. However, in this case they did something different: they arrested the man, and an hour later they returned and re-asked the woman who again consented to the search.
Today's ruling says that a person who is arrested and taken away is the same as someone who is absent and therefore cannot legally object to the search. His prior objection was rendered null by his arrest (or so the majority claims). I think that's a big problem.
To begin with, it gives police tremendous incentive to arrest people who are non-consenting. Even if they don't file any charges, all they need to do is lay an accusation, bundle you into a patrol car and presto they've removed your objection to a search. Why bother with that pesky warrant procedure when all it takes is a few minutes to get someone out of the way? (If you think you can't be arrested for standing on your front step telling police "No, I do not consent to a search of my home" boy do YOU not understand how the system works.)
I said this case was "hard" in part because the facts show the defendant in a bad light. He was arrested for a robbery - the police had been in pursuit when he entered the home - and when they knocked the other occupant was a woman who showed visible signs of physical abuse. The police seem quite justified in removing him. But given that an hour had passed, why couldn't they go before a magistrate judge and get a warrant?
I find it significant that the three objecting SCOTUS judges were the women on the Court. You might expect them to side naturally with the battered woman in this case, who did give consent to the search. I'll be interested to see what Ginsburg wrote in her dissent.
no subject
Date: 2014-03-02 04:38 am (UTC)If you think that cops anywhere are being even vaguely careful about who they arrest then you've been living in a different country than I have. (For the record no I don't think cops in general are evil, but I don't think it's possible to look at the countrywide responses to Occupy and not realize that the game has changed. Colored folk have always lived this reality; now white folks get it too.)
In those cases where a cop has a legitimate reason to arrest and then come back for the search, a. they'll have plenty of time to get a warrant (and will do so),
What you're describing is EXACTLY counterfactual to what happened in this case. The cops took the defendant away and returned an hour later, warrantless. You appear to be asserting that, contrary to the facts of this case, the cops will behave in a different manner. I see no reason why they should, given this decision.
In cases where the cops suspect a crime in progress, there's plenty of case law supporting spur of the moment permission to search.
That's both irrelevant and partly untrue. A crime in progress can provide grounds for an arrest, but not for a blanket search. The law and precedent allow for searches incidental to the arrest; for example, of the arrested person's body and effects. There's also a "plain view" exception that permits searches of premises and vehicles, incident to an arrest. Other than that, a search still requires a warrant. Getting a warrant requires production of allegations that the target of the warrant is materially related to the specific criminal matter. That's the core of the 4th Amendment.
And it's wholly irrelevant in this case because there was no crime in progress at the time of the request to search, nor at the time of the subsequent search.
why would a woman be expected to side with anyone, especially when the women in question know full well the gravity of their opinions
I would expect a woman to have a perspective and sensitivity to the dangers women face that a male judge would not necessarily have. This case illustrated those dangers and thus one might naively assume how a Justice would vote. Though i was unaware of the circumstances noted in Footnote 5 of the dissent at the time I wrote the original entry.