BREAKING: SCOTUS Decision Weakens 4th Amendment Protections

[cali]

Last edited Tue Feb 25, 2014, 02:07 PM - Edit history (1)

WASHINGTON -- A divided Supreme Court ruled Tuesday that police do not need a warrant to search an apartment when the objecting tenant isn't home -- even if they are the ones who removed him.

The 6-3 verdict left the three female justices on the court objecting despite the wishes of "an abused woman" who invited police in to seek evidence from an earlier, violent robbery.

Justice Samuel Alito wrote the opinion for the court's conservative majority, joined by Justice Stephen Breyer. While co-tenants of an apartment usually must agree to a warrantless search, he said, one tenant's absence frees the other to make the decision.

<snip>

Justice Ruth Bader Ginsburg argued in dissent that Fernandez' objection to the search -- first raised while he was still inside -- requires police to get a warrant. She was joined by Justices Sonia Sotomayor and Elena Kagan.

"Instead of adhering to the warrant requirement, today's decision tells the police they may dodge it, nevermind ample time to secure the approval of a neutral magistrate," Ginsburg wrote. "The specter of domestic abuse hardly necessitates the diminution of the Fourth Amendment rights at stake here."

<snip>

http://www.usatoday.com/story/news/nation/2014/02/25/supreme-court-warrant-search-tenants-robbery/5807041/

This is a dangerous decision that will be badly abused by law enforcement.

The Case is Fernandez v. California

http://www.supremecourt.gov/opinions/13pdf/12-7822_he4l.pdf

[SamKnause]

1. Just exactly what is so fucking

Supreme about these assholes ???

They sicken me and deserve ZERO respect.

The police are already above the law in this country.

Why give them more leverage to abuse and kill citizens ?

When is police brutality and the assassinations of citizens by the police and SWAT teams going to be addressed in this country ?

NEVER, that's when.

[liberalmike27]

70. hmmmmm

What fourth amendment rights. I think that ship has sailed, and sunk out at sea, never to be seen again.

[H2O Man]

2. Recmmended.

This is a very significant ruling. Odd that your OP is largely ignored on DU:GD. It has the potential to victimize any number of people in the DU community.

I appreciate your posting this.

[cali]

10. man, is that the truth. about gd. it reads more like a gossip forum

than an issues forum, much of the time.

thanks and glad to.

[H2O Man]

92. When I came

back to this OP/thread, I was pleased to see it had gotten a lot more attention. While that included some nonsense from those who feel the compulsive need to react to everything you post -- always mistaking everything for an attack on the president -- the number of "recommends" demonstrates that most people got it.

[kelliekat44]

110. The kinds of posts that regularly get ignored here speaks volumes about who has come to join us. nt

[H2O Man]

111. I agree

100%

[toddwv]

114. It's at the top of General Discussion

I'm not sure that qualifies as being ignored.

[H2O Man]

115. It wasn't when

I wrote that; hence, I'm sure your comment does not qualify as insightful or having value.

[awoke_in_2003]

117. sometimes you have to wait more than 11 minutes. nt

[demwing]

124. roflspew!

[ZombieHorde]

126. Thank you.

Not everyone dedicates their lives to refreshing the Latest Threads list.

[TransitJohn]

116. The OP should've specifically mentioned gender in the post title, then it would've generated

discussion.

[HappyMe]

3. k&r

Good grief, this is horrible.

[librechik]

4. I'm shocked!

no, I'm not. I;ve known we live in a police surveillance state for decades. They are just tightening the noose.

[G_j]

5. Weaken? They are trashing

the 4th Amendment

[MerryBlooms]

6. Unbelievable the shit this court gets away with.

[appal_jack]

7. K&R. cali, you do us all a service by posting such important news.

K&R.

cali, you do us all a service by posting such important news.

I weep for my country, and particularly for the six 'Justices' in this decision, busily shredding our Constitution.

Giving the Supreme Court the authority to abrogate our rights was a mistake. What with corruption and avarice rife in all three branches of our government, where can we turn? Kagan, Sotomayor, and Ginsberg are in the right. But being also in the minority, they are powerless here. They, and we, will have to just keep standing for our clearly-enumerated rights despite this miserable, niggardly, authoritarian decision.

-app

[cali]

11. I see vital issues not being posted at all in gd

these days and I really try to post as much of it as I can.

thanks

[japple]

53. Right on. Not being posted or being complete ignored. Thank you

for posting this one.

[jsr]

8. Enshrining the police state at every opportunity

[Erose999]

9. Never carry more than you can eat.

[theHandpuppet]

12. Horrible.

Just one step closer to the fascist state.

Someone remind me why the appointments to the SC are for a lifetime?

[LarryNM]

118. Because the Legal Establishment Wanted It

Perhaps the nation that eventually replaces this one will correct that grievous error.

[Wolf Frankula]

13. The 4th Amendment was Stunned when the 'Good Faith' Exception was added.

I broke the law, but I broke the law in good faith.

Imagine if everybody could use that. I robbed the bank, but I robbed the bank in good faith. I thought what I was doing was legal.

Wolf

[kenny blankenship]

14. P _ L I C E S T _ T E

The Supremes are just gradually, methodically filling in the blanks. (The Executive has done plenty for its part, as Mr. Snowden has informed us, and the Legislative branch has done a fantastic job of clowning around and maintaining its sincere ignorance -and the people's ignorance- of how the state is actually functioning, controlling and financing itself.) Don't want to do things all at once and tip people off.

[ProSense]

15. I guess the

other decision was simply to appease.

Supreme Court lets stand lower court ruling against law that would have defunded Planned Parenthood
http://www.democraticunderground.com/10024561359

The scary thing is that even if Obama gets another appointment, the balance here doesn't change.

Justice Ruth Bader Ginsburg argued in dissent that Fernandez' objection to the search -- first raised while he was still inside -- requires police to get a warrant. She was joined by Justices Sonia Sotomayor and Elena Kagan.

[cali]

16. OK, you're kind of losing it. seriously.

I honestly don't intend to be mean here, but that decision isn't relevant to this one. I'm glad of that decision. You should post an op about it.

This is a big deal decision and all you can do is rush to defend President Obama- who I was not criticizing.

It's not even amusing to snark at you anymore because this is just off the tracks commenting.

[ProSense]

17. No,

"OK, you're kind of losing it. seriously. I honestly don't intend to be mean here, but that decision isn't relevant to this one. I'm glad of that decision. You should post an op about it. "

...you meant to be "mean," and as for "losing it," the link is to a friggin "op."

[progressoid]

59. Yeah, what the fuck?

[pragmatic_dem]

121. conservatives here get very defensive about Obama's spy programs and weakening 4th amendment

they know it is bad policy, but popular with conservatives.

Of course, the spy programs are very unpopular with liberals but liberals will always vote Democratic. So conservatives can insult liberals all day long because, after all, you will always vote Democrat. They take you for granted.

So, the strategy for the conservatives in the party is to attract more votes from conservatives, therefore, stealing votes away from Republican extremists, who have lost credibility. Unfortunately this continues to move the Democratic Party to the right (take TPP, for example - What in the fuck? Romney must be grinning from ear to ear!)

I guess it's a credit that a Democratic web site tolerates conservatives, but when they act out and hijack your thread, it shows they aren't secure enough in their own convictions and principals. Tolerance isn't the best attribute of the right wing.

On the other hand, if they are here 24/7 defending themselves for bad behavior, then I guess they are off the street and hopefully away from small children so, really, the rest of us are all probably safer for it.

[The Green Manalishi]

128. "Only Nixon can go to China"

Each side plays this game.You'd hear much more outrage about drone strikes and some of the nefarious things Holder has done had it been a (R) POTUS and AG doing them.

Just the way it is and always has been.

[pragmatic_dem]

132. It's different now, besides nation keeps moving right and this site is supposed to be left

we don't need two parties whose core leadership is sharing economic and military policy points (is social security on the table or off the table? Is it ObamaCare or Romney Care? Is NAFTA bad, but TPP good? Go soft on Wall Street but tough on pot smokers?)

The Democrats have nothing anywhere near as extreme as tea party movement.

There is no counter balance on left.

Democratic leadership sees this as easy way to pick up flotsam from Tea Party aka independent conservative voters.

Both parties are run a business and a business needs to sell product, they really don't care who buys or why it as long as it pays their mortgages.

Alienated conservatives can vote Democratic. Alienated liberals have no second choice for counteracting Democrats movement to the right.

Dem Leadership is taking full advantage of this fact by continuing to marginalize liberals.

[JDPriestly]

120. But, life is unpredictable.

What if Obama gets two more Supreme Court appointments. i know that they are all young, but strange things do happen.

[JJChambers]

18. Sooo..

In this case, two people live together and the man commits a robbery which police are investigating and eventually arrive at his house, where they discover he has beaten and abused the woman he lives with. The robber / abuser is subsequently arrested. The woman grants police consent to search her own house. And people here are siding with a violent, woman abusing criminal?? Is it DU's position that a woman shouldn't be capable of granting consent to search HER OWN HOME? For evidence of a crime in which SHE is a VICTIM??

Disgusting.

Criminals should NOT have the right to victimize with impunity.

[Maedhros]

23. Nobody is siding with a criminal.

This isn't the Jerry Springer show - it's not about "siding" with anyone.

This is about the 4th Amendment and how it may be applied or ignored in the future as a result of this ruling.

[tonybgood]

49. You have missed the point.

If the police come to your house and request to search for ANY reason and you say no, all they have to do is remove you from the house and then they can search without a warrant because "you're not home". It's not a matter of protecting a criminal; it's a matter of procedure and due process. There was no impending danger or significant threat that would have rendered finding a magistrate to issue a search warrant in this case. No one is defending a criminal; we're stating that the 4th Amendment is supposed to protect citizens from illegal search and seizure. By declaring they have the right to search if "someone isn't at home"; the 4th Amendment protection is negated.

[JJChambers]

58. That's not what this decision said at all

The bad guy was lawfully arrested and the person in the home granted consent. They didn't just search without a warrant and without consent. They had consent from the resident.

[tonybgood]

65. Did you read it?

He was in the house and said no to the search. If they had arrested him and then got a search warrant there would have been no problem. By removing him and then asking someone else, they rendered his rights void. You don't see how that could be a problem? You don't see that now, all they have to do is remove you from the house and then there is no one to say "no"?

[Jeff In Milwaukee]

73. It's a little trickier than that...

They wanted to search his apartment on the robbery complaint, and the suspect refused. While police were at the apartment, they found his girlfriend, who appeared to have been the victim of a beating at the hands of the suspect. He was taken in for domestic abuse. While in custody, the girlfriend subsequently gave police permission to search the apartment for evidence regarding the robbery. It wasn't like police arrested the guy just to get him out of the way -- there was a legitimate complaint of domestic abuse to be considered.

All that being said, since the suspect was in custody (and subsequently charged in the robbery as well), there was ample time to get a proper search warrant -- and certainly no judge would have denied it. All that being said, I'm not sure what sort of broad legal precedent is being set here. Police already have the right to search all "common areas" of an apartment if one roommate agrees to the search. In this case, we can assume that the two were co-habitating and so all areas of the apartment would have been considered common areas. So I'm not sure if there's any new ground being broken here.

[JJChambers]

74. No, that's nonsense

You're implying the police can just come arrest you and search your house since no one tells them they can't. That isn't what this decision says. This decision says that if you have been arrested and the police later ask your wife for consent to search, which she is legally able to grant, that she may grant it.

Someone with control and authority over the residence still must consent to a search.

[DefenseLawyer]

69. There is a previous case, Georgia v. Randolph

from 2006. It stands for the proposition that if two people have standing to consent to a search and one refuses to consent, while the other does give consent, the refusal wins and there is no valid consent. In general, except in a limited search incident to arrest or a protective sweep in the execution of an arrest warrant, being arrested to not take away one's right to refuse to consent to a search of her home. This case now says it does, to the extent that Georgia v. Randolph won't apply so long as the police arrest the person who fails to give consent. If you can't see how this will be abused by law enforcement going forward (that when confronted with a Georgia v. Randolph situation they will simply arrest the one that doesn't consent) you don't really understand how law enforcement operates in this country.

[msanthrope]

91. I pointed out downthread that this is a deliberate gut of Randolph...which Scalia always hated. nt

[DefenseLawyer]

93. As every good authoritarian should. n/t

[msanthrope]

95. I'm surprised at Breyer on this one. nt

[DefenseLawyer]

96. I'm not.

He's never been solid on 4th Amendment issues.

[cstanleytech]

104. Mmm I think it (the 4th) is still largely intact though even after the ruling.

The police still need probable cause to arrest you for something and there would have to be someone who is a tenant of your home to give them permission to enter without a warrant if you say no or you dont have a co-tenant or have a co-tenant who says no then they are sol and have to get a warrant still.

[alarimer]

107. Oh, like the police are NEVER going to abuse that

[DallasNE]

50. What Is Wrong With The Police

Why didn't they just get the damn warrant as required by the 4th Amendment. Everything else about this is just background noise. Due process was not followed. Yes, she is a victim but she cannot waive his rights and he refused police entry without a warrant. From what we know getting a warrant would have been a foregone conclusion so all we are talking about here is police investigation efficiency versus following the rule of law. I come down on the side of the rule of law. Nobody has shown where getting a warrant would have altered the outcome of the case as he was not in a position where he could have destroyed evidence. Get the damn warrant.

[DallasNE]

62. Court Comes Down On Side Of "Police Investigation Efficiency"

Here is the passage from the decision that spells this out.

Petitioner claims that his expansive interpretation of Randolph
would not hamper law enforcement because in most cases where officers
have probable cause to arrest a physically present objector they
also have probable cause to obtain a warrant to search the premises
that the objector does not want them to enter. But he misunderstands
the constitutional status of consent searches, which are permissible
irrespective of the availability of a warrant. Requiring officers
to obtain a warrant when a warrantless search is justified may
interfere with law enforcement strategies and impose an unmerited
burden on the person willing to consent to an immediate search.

An earlier court ruling said that when two parties are involved and present both must consent before a search can be conducted without a warrant. Here both parties were present but the police physically removed one party from the premises so another ruling came into play that allows a search if the one remaining party consents. But in that case the whereabouts of the 2nd party was unknown and that was clearly not the case here. This is just a license for police to always remove the dissenting party so they can conduct their warrantless search.

[kristopher]

81. Well, that's the way they'd do it in a TV drama, isn't it?

I think your analysis is succinct and accurate. Thanks.

As an aside, the entertainment industry couldn't sell a drama about a police unit that didn't routinely trample on people's rights no matter how great every other aspect of the show might be.

[Hoyt]

55. I agree. Haven't had time to read the entire decision, but this is a limited set of circumstances.

I think it would have been easier to get a warrant -- doesn't sound like there is any reason it would have been denied -- but to let this guy off in these circumstances seems wrong.

[H2O Man]

90. shallow

[daleanime]

19. Just more grease for the slope

[Orrex]

20. Can someone explain something?

If two tenants share an apartment and only one is home, why wouldn't that tenant's approval be sufficient to allow the police to search?

[msanthrope]

27. The police can search in that instance. What happened here though, was that Fernandez objected

to a search. He was then arrested and removed from the scene. The request was renewed to Ms. Rojas, who consented.

[Orrex]

29. Ah. Thanks.

Sounds like a case of "if they arrested him, then the search is obviously justified."

[msanthrope]

35. No....he was running from a gang robbery he had just committed. He ran into his apartment,

beat the crap out of his girlfriend, who then answered the door for the officers, bleeding and crying. He refused a search. They slapped the cuffs on him for suspicion of domestic violence, he was arrested on suspicion of robbery, id'ed by the victim and taken to the station. Cops went back to the apartment and asked for consent.

[Orrex]

52. Then I'm still confused.

If you were investigating the theft of a bakery's five custom-made pies, and the guy at the apartment above the bakery answered the door with one of the custom pies half-eaten in hand and two empty pie tins in plain sight behind him, wouldn't that justify entry to the site?

The woman bleeding and crying at the door would certainly seem like probable cause to me.

[msanthrope]

63. Entry for the purposes of arrest, and a search of the premises are different. In the hypo you

give, the cops would be able to enter to affect arrest, and could do a plain-view search to secure evidence and protect themselves.

[Orrex]

67. I swear I'm not being deliberately obtuse about this, but...

I'm not getting why the presence of the crying and bloody woman wouldn't give probable cause for entry & search.

If the guy opened the door with the woman dead and bloody on the floor behind him (in plain view, as the bloody woman was in the real case, if I understand correctly), then why couldn't they search regardless of the guy's consent?

[DallasNE]

80. They can do a limited search without a warrant

Everything in plain sight is fair game. They need the warrant to search for things not in plain sight. If something was covered by a blanket they would need a warrant to remove the blanket.

[Orrex]

86. Ah. Thanks again!

So they couldn't, say, arrest me on the street and then use that arrest as a pretext to ransack my house without a warrant (or permission) in hope of finding something?

[msanthrope]

94. No...the search you describe would be illegal. nt

[msanthrope]

89. They wouldn't need a warrant to remove the blanket, depending on what they reasonably thought

was under it....like a person.

[msanthrope]

88. Oh...the presence of the crying and bloody woman with a baby would give them probable cause to

enter and secure the premises. But "search" in that context would be limited to making sure there were no armed and dangerous people around, and that all occupants of the house...including the minors.... were present and accounted for, etc. Essentially, they could sweep the house and see what's in plain view. They did so, and that's when they encountered the defendant, who clearly stated that he did not consent to any further search.

The cops wanted to search for items pertaining to a a robbery, though. That level of search requires either consent, or a warrant. Why? Because you aren't looking for what is in plain view. You are opening things...searching through papers and effects.

With a bloody woman on the floor, you would have PC to do the same....you still need a warrant, however, to do more than a sweep and secure the premises.

A note though...probable cause is a pretty high standard, you actually only need a reasonable suspicion to investigate.

[questionseverything]

71. probable cause is what is nessacary for a warrant

not for a search

there was plenty of time for the police to follow the letter of the law

instead of going to a judge and getting a warrant (to protect the accused persons rights) they circumvented and now law is changed for ALL of us

[bvar22]

21. Are we "there" yet?

Some can argue that No. We aren't "there" yet, and point to other countries like the old East Germany where the abuses were worse,
but nobody can look at the last 15 years and say we are not headed in that direction.

DURec.

[polichick]

72. Problem is, most people refuse to look long enough to put it together.

[msanthrope]

22. It's a rightwing gut of Georgia v. Randolph. Scalia hated that decision...this

is a way to minimize it.

Cali....I appreciate you posting this, but I beg you provide the name of the case and the opinon in your OP.


Fernandez v. California
http://www.supremecourt.gov/opinions/13pdf/12-7822_he4l.pdf

[cali]

25. sorry, I didn't do that. You're right. I'll gladly make that change

[Lurks Often]

24. It's always interesting when the most liberal & conservative judges agree.

Here is the link to the full decision: http://www.supremecourt.gov/opinions/13pdf/12-7822_he4l.pdf


So when two residents of the same dwelling disagree on allowing a search, who has the right to give consent?

[msanthrope]

30. I'll try to answer that....if you have two people present, one objects, then there is no

search.....essentially, Georgia v Randolph would still apply.

Two people present, one objects, is arrested or otherwise lawfully removed? The other can consent....that's today's decision.

One person present, the other not there? Whoever is home can consent.

[Nuclear Unicorn]

33. Honest question --

Two (or more) people present. One does not consent, the other(s) give(s) consent. The dissenter is arrested and the residence is searched. Later, the arrest is deemed unlawful. Is any evidence (for the original offense or offenses based on the search) excluded?

[msanthrope]

42. Was the arrest a pretext to get a search allowed? Yeah...I could get that thrown. nt

[Nuclear Unicorn]

45. That is one of my big concerns with this ruling. It seems to invite abuse. n/t

[Thor_MN]

56. But can today's decision extend to one person?

One person is home, objects to a search, a reason is created to remove the person and now a warrantless search is OK because there is no one to object to it?

Does it extend to 0 people at home, but warrantless search is OK because no is there to object?

[msanthrope]

60. The warantless search you described would be illegal. nt

[Thor_MN]

68. The ruling today hinges on having permission from a resident of the dwelling then?

And any other residents can simply be removed from the dwelling (for any reason) to allow the cooperating party be the sole opinion.

Nice. Glad I don't have room mates anymore. Not they would find anything interesting in my house in the first place, but I would prefer not to have hamhanded officers pawing through my stuff.

[msanthrope]

85. Reading the majority, they seem to indicate that since the removal was for a lawful

arrest, that is permissible. A pretextual removal would presumably not be permissible.

[quakerboy]

119. So change the scenario slightly

Given this ruling, and you have only one person home. He objects to the search. An officer recognizes him as someone with an outstanding warrant on an unrelated traffic issue, minimal offense, but making it a legitimate arrest. Can the police now search his house with no warrant, with the removal of his person, and thus his objection?

Or would it require a second resident who is giving positive permission?

If all it requires is the absence of an objection, I can see many ways this could go wrong.
If it still requires a resident giving permission to do the search, I have less issue with it.

I think I should be able to give permission to search my space if I so desire. If I've got a roommate, maybe not his room, but common spaces and my spaces, certainly. Sharing living quarters means you give up some privacy to the other person(s) in your space, in my opinion.

[msanthrope]

123. The police could not search your home in that instance, since they have

neither warrant, nor consent. Now, if the arrest happened indoors, they could do a cursory sweep to ascertain they were not in danger, or a search incident to arrest, but that is limited.

[DallasNE]

75. I'm Not So Sure

Here is what the court said in this case.

Petitioner claims that his expansive interpretation of Randolph
would not hamper law enforcement because in most cases where officers
have probable cause to arrest a physically present objector they
also have probable cause to obtain a warrant to search the premises
that the objector does not want them to enter. But he misunderstands
the constitutional status of consent searches, which are permissible
irrespective of the availability of a warrant. Requiring officers
to obtain a warrant when a warrantless search is justified may
interfere with law enforcement strategies and impose an unmerited
burden on the person willing to consent to an immediate search.

Here it sounds like the wants of the police are primary as represented by interference with law enforcement strategies. It also assumes that a warrantless search was justified when the question is whether a warrantless search was justified. It all makes my head spin.

[msanthrope]

82. No...I'm correct..the hypo as given doesn't give a justification that would allow

a warantless search.

[mopinko]

32. the judge that issues the warrant

[Xithras]

26. I disagree. This is simply the court ruling correctly on something that should be common sense.

Two people reside in the same home. One is present and consents to have their home searched. The other is not present at all (either because they are away, or because they have been arrested for a crime). The police only need consent from the PRESENT resident to search the home.

The police should not need to obtain consent from every single resident of a home before conducting a search. If one legal and lawful resident provides consent, that should be sufficient. This ruling simply affirms a fairly common sense legal standard that has existed in this country since the Fourth Amendment was written.

If you are worried about your roommates giving police permission to search your property without consent, I would suggest finding better roommates.

Lets not forget the context of this case. A man and a woman lived in a house together. The man assaulted the woman, and violently robbed her, and was arrested for that crime. The woman gave the police permission to enter HER OWN HOME so they could document the damage he did. The mans position in this case is that the woman DOESN'T HAVE THE RIGHT to allow the police to enter HER OWN HOME to document the damage from his violent rampage if he "objects". It's an idiotic assertion.

It's the woman home too. She has a right to allow the police entry to the property.

[randome]

34. That is an important context.

I wonder why the dissenting judges didn't see that.
[hr][font color="blue"][center]Aspire to inspire.[/center][/font][hr]

[msanthrope]

39. FYI...the robbery wasn't against her...the domestic violence was. I think the dissent

pointed out that Fernandez, while present, had rejected a search, and so Georgia v. Randolph should have applied. Mere removal should not have negated that.

The majority, though, disagreed.

[Erda]

41. I agree with you. The way I see it is . . .

If two people live in the apartment and both names are on the lease, they are JOINT owners (occupants). Their ownership overlaps -- that is, each joint occupant has overlapping 100% ownership and can make decisions on behalf of the other occupant if the other occupant is absent. One occupant speaks for the other, in his or her absence. If both are present and one objects to a search, the police would need to get a warrant that is let a judge decide.

[uponit7771]

43. LOL!!! So to get consent to search a home arrest everyone who wont give it!?!? lol... ok

The issue here isn't the common sense assertions it's the slope that the majority didn't define

IE, the popo can't arrest everyone associated with the house till the find someone to let them search it for instance

This is ANOTHER half ass thought through ruling by conservatives

[JoeyT]

47. No, they thought it all the way through.

They know exactly how it will work. It's intentional.

[uponit7771]

48. +1

[Laelth]

54. No person should have the right to give away the privacy rights of an adult citizen.

The ruling cited in the OP allows one resident to give away the other resident's right to privacy. I am not happy about that.

-Laelth

[DallasNE]

78. You're Entitled To Your Own Opinion

But there were two prior rulings on the book/

Case 1: Two people were present and only one gave consent for the search. The court ruling was that a warrant was required in that instance.

Case 2: Two people lived at the residence but only one was available and gave consent. The other the whereabouts was unknown at the time and the ruling was that the consent of the person present was all that was needed.

The court in this case ruled that case 2 applied even though the whereabouts of the 2nd party was known this time. But this ruling begs the question. Why didn't the police simply get the warrant and follow the established rule of law. Getting a warrant would have made everything clean and tidy. There are some questions on consent searches since people may fear what happens if they don't consent with a police request. Not saying that is the case here but just getting the warrant removes that from the equation. People are not trying to protect the criminal, they are trying to protect due process.

[get the red out]

28. Scary stuff!

I agree that this can lead to some major abuse.

[Nuclear Unicorn]

31. K&R n/t

[Gman]

36. This really doesn't change much that I can tell

As it is now, anyone who is at your home but doesn't live there, a friend, salesperson, whatever can allow the police to come in and search if they answer the door and you don't.

And I say that from experience. After I had taken Con Law in college I was at a friends house and we were all smoking dope and listening to rather loud music. There was a knock at the door and I got up to answer it. Some guy I didn't recognize was at the door with his ruffled short hair (we all had long hair) and holding his jacket closed with his collar turned up just said "how's it going". I asked who he was and he tried to push past me to get in. About the same moment I saw a police car parked a house down and across the street and realized immediately this guy was a cop. I moved forward, closed the door behind me and said, "Can I help you?" Knowing his cover was blown, he let his jacket open to dhow his badge and insignia and he said the neighbors complained about loud music. I said we'd turn it down. Then he asked if we were smoking dope (he smelled it) and I said of course not.

Had I not taken con law and discussed the very topic of anyone at your house allowing the police in I would not have been so cautious to begin with when I didn't recognize the guy. You never knew who was a "narc" in those days. So I think it's already established law.

I realize these are different circumstances than this case. This case seems to be quirky because the guy objected when he was not there. So maybe all this does is just make it to where you have to be there to object. Something that doesn't happen but rarely. But anyone, not just the person/people that live there can allow the police in. Then it's not much of a stretch for the police to claim probable cause of a crime and search.

JMHO

[red dog 1]

37. K&R ..Thanks for posting

Last edited Tue Feb 25, 2014, 06:02 PM - Edit history (1)

This SCOTUS decision doesn't surprise me...but Stephen Dreyer joining the 5 wing-nuts does.

[SoapBox]

38. More powers for the out of control Police Militias.

[uponit7771]

40. WE NEED A 3RD PARTY!!! /sarcasm <------ cause that's needed here

[Jefferson23]

44. What the hell happened here? Breyer?? Breyer and Kennedy bought into this? WTF.

Do no harm, error on the side of caution. This is nuts.

[Kali]

46. very important

kick

[Spitfire of ATJ]

51. "This is a dangerous decision that will be badly abused by law enforcement."

I can picture the test case now.

[AAO]

57. We need all liberal women on the SCOTUS!

These men are going to kill us all!

[riderinthestorm]

61. Oh what could possibly go wrong with this new decision?

Pretty damn awful

[dorkzilla]

64. K&R

Just bloody awful. Maddening, sickening--fucking awful.

[historylovr]

66. K & R

[stillwaiting]

76. It's fasicstic-ly delicious!

If you're a fascist I guess.

Horrible, horrible Supreme Court in place currently.

The Bush theft of the election in 2000 has been pivotal to so much of what's happened in this country over the past decade.

[Historic NY]

77. They should have just left the apt......

[blackspade]

79. WTF?

What a tortured legal decision.

May as well just skip to the full blown police state instead of the of the police state 'lite' we have now....

[one_voice]

83. k&r

[struggle4progress]

84. Randolph seems to have been fairly limited: a resident who was present could prevent

warrantless search by refusing consent. The worrisome text here IMO is this:

In Randolph, the Court suggested in dictum that consent by one occupant might not be sufficient if “there is evidence that the police have removed the potentially objecting tenant from the entrance for the sake of avoiding a possible objection.” 547 U. S., at 121. We do not believe the statement should be read to suggest that improper motive may invalidate objectively justified removal ...

The Justices here suggest that courts need not inquire into the motives for removing an objecting resident, provided there are "objectively justified" grounds for removal. Since SCOTUS has in the past sometimes held that "good faith" or "reasonable belief" errors may defend a search against constitutional challenge, one question must be whether "objectively justified" grounds for removal include removals involving errors but "good faith" or "reasonable belief" of the officers. What, for example, is the status of the search if officers, on being refused entry by one resident, are informed incorrectly by dispatch that there is an outstanding warrant for the non-consenting resident, arrest that person, conduct the search, and the subsequent story is that the dispatcher unaccountably misspoke? Is that then still an objectively justified removal? In such cases, the Justices' suggestion, that no one need inquire into the issue of improper motive, might gut Randolph

This question of non-consent and subsequent removal of the party not consenting seems to me the major question before the Justices. It is a serious question, and one can imagine various hypotheticals which might lead to different conclusions. I am not particularly concerned by the fact that the Justices allowed the search in this case. But I am concerned by the ruling, as IMO they failed rather badly to give the major question the careful and diligent attention it deserves

[Javaman]

87. you mean we still had some remnant of 4th amendment rights left? nt

[npk]

97. So this is the SCOTUS version of "Ask your mother."

If a child asks Daddy to go the movies and he says no, but the mother says yes, then everything is good. Right!!! The law still breaks down because one person's authority is not respected. Two or more tenants, all tenants regardless of whether they are present, should have to give consent. If 10 people lawfully reside in a home, all ten have authority to protect their belongings. This is bullshit.

[blkmusclmachine]

98. Now we know WHY the SCOTUS remodeled the Court to help exclude the public.

[DeSwiss]

99. K&R

- NOW do you believe it's a.......

[font size=10]POLICE STATE[/font]

You have no rights.......

[840high]

105. ....^

[The Wizard]

100. The police state

has just been reenforced.

[sadoldgirl]

101. Question to you lawyer guys

Is this in anyway different ( with the exception of being assumed to be a terrorist) from what happened with the FBI, when they searched the home of that person (already in custody) without any permission?

[Warren DeMontague]

102. The 4th Amendment still exists?

I thought we did away with that years ago, when we decided to fill our prison cells with pot smokers.

[saidsimplesimon]

103. Justice Alito, I want access to your personal email.

Dear Justice Alito,

When "they come for you", don't expect me to defend you. No Warrant, Not home, No Justice; I'm losing my respect for the "Rule of Law".

[mostlyconfused]

106. Seems similar to the NSA spying, or other government intrusion in our lives

In the context of this specific incident (Fernandez v CA), you can make an argument in favor of the police having that power because you want to see the abused person protected. In the case of an individual corresponding with known terrorists with the intent to commit a crime, you can argue in favor of the NSA being able to monitor and record their activities because we want them stopped.

While it may sound compelling in those situations, the issue is how law enforcement, the government, etc can abuse that same power in any other situation.

If you don't commit a robbery or abuse, in theory you should have no fear of the police showing up at your door asking to do a search. If your phone communications, emails, social media connections, etc are all innocent, in theory you should have no fear of the NSA collecting what it is collecting.

[Lancero]

108. I' don't get it...

What here is new?

They require consent from a person living at the home, and they got it. The person consenting to the search of their own home removes the requirement for a warrent.

Although consent was not gained on the first visit, one person (male) was arrested for legitimate reasons - Suspicion of assaulting his girlfriend, and matching the description of a robbery suspect.

Later, the girlfriend gave consent to the search as she was legally allowed to do.

So, can anyone point to what laws the police violated? The did not enter the first time, as they lacked consent to do so. They followed the law. A person was arrested for assaulting his girlfriend. They enforced the law. They entered at a later time, when they had gained consent to do so. They followed the law. Everything they did was entirely legal, so whats the fuss about?

Frankly, it's a might suspicious that people are raising this big of a shitstorm over a woman giving consent to enter a home, after a male has denied it - Seems to me like these people think a woman needs a man's permission to give consent to things.

[CFLDem]

109. Yikes

But simultaneously not surprising...

[happyslug]

112. I have dealt with Landlord and Tenant law for over 20 years, and I agree with Scalia

Last edited Wed Feb 26, 2014, 10:15 AM - Edit history (1)

Scalia maintain that Georgia v. Randolph, 547 U. S. 103 decided in 2006, was wrongly decided. In Randolph it was held that if two people are co tenants of housing, one of those Tenants could NOT overrule an objection to a Police Search by another co-tenant. That is a complete DISREGARD to the whole concept of co-ownership of any property. As Co-owners each co-tenant can invite whoever they want onto the property thus any co-tenant can invite whoever he or she wants onto the property. If that means one co-tenant invites the Police over the objection of the other co-Tenant that is one of the whole concept of Co-ownership. i.e an un-dividable ownership interest in the property as a whole, In the case of two co-tenants, an un-dividable half interest in the whole property. That is a basic rule when it comes to co-owning anything.

The opposite position is to adopt a position that even the Common Law rejected when it came to co-ownership of property, i.e. the real sole owner of such co-owned property is the Man of the house, and his wife while he is alive, has no interest it the property at all, including the right to invite people onto the property. As I said that was NEVER the law under the Common law, even when the Husband was entitled to 100% use of not only his own property, but his wife's property.

The dissent is trying to say, Randolph was correct, any co-owner can object to anyone being on the property. Furthermore once an objection is made, the co-owners can NEVER over rule it. If that was the case, if a co-owner said X could not come on his property, that would be true even if it is 10 years later.

The problem is THAT IS NOT PROPERTY LAW IN THE US AND HAS NEVER BEEN THE LAW OF PROPERTY UNDER THE COMMON LAW. Both Co-owners of property have the same EQUAL RIGHTS as to use of the property, including permitting anyone they want on the property.

To give a co-owner the right to object gives that co-owner the ability to prevent anyone from coming on the property, even someone who another co owner wants to come on the property just to show that person her flowers. Such absolute veto by a co owner is not workable and thus has never been the law.

The Majority just wanted to restrict Randolph to its facts, when one co owner had objected and the other gave permission for police to enter while both were present. With Scalia and Thomas's concurrence based on their opinion Randolph was wrongly decided, that was enough votes to uphold this conviction.
),

[Vattel]

113. wow, awesome arguments by Ginsberg. She destroys the majority opinion

[Michigan-Arizona]

122. K&R n/t

[Orsino]

125. The Roberts Court is a machine built to weakening the Fourth Amendment.

Not exactly breaking news.

[Fantastic Anarchist]

127. I didn't realize we still had Fourth Amendment protections to weaken.

That's news to me.

[The Green Manalishi]

129. Stolen from another site, but the post is worth reading.

The ruling:

http://www.supremecourt.gov/opinions/13pdf/12-7822_he4l.pdf

The situation:

“Police officers observed a suspect in a violent robbery run into an apartment building, and heard screams coming from one of the apartments. They knocked on the apartment door, which was answered by Roxanne Rojas, who appeared to be battered and bleeding.

When the officers asked her to step out of the apartment so that they could conduct a protective sweep, petitioner came to the door and objected. Suspecting that he had assaulted Rojas, the officers removed petitioner from the apartment and placed him under arrest. He was then identified as the perpetrator in the earlier robbery and taken to the police station. An officer later returned to the apartment and, after obtaining Rojas’ oral and written consent, searched the premises, where he found several items linking petitioner to the robbery.

The trial court denied petitioner’ motion to suppress that evidence, and he was convicted.”

Also:

“Our cases firmly establish that police officers may search jointly occupied premises if one of the occupants consents. See United States v. Matlock, 415 U. S. 164 (1974). In Georgia v. Randolph, 547 U. S. 103 (2006), we recognized a narrow exception to this rule, holding that the consent of one occupant is insufficient when another occupant is present and objects to the search. In this case, we consider whether Randolph applies if the objecting occupant is absent when another occupant consents.”

[niyad]

130. k and r for even more evidence(as if it were even needed) that we live in a police state

[truebrit71]

131. Hmmm....so one co-occupant can waive the rights and protections of the other co-occupant?

That shouldn't be allowed under the 4th amendment...Have these SCrOTUS's read the document they are supposedly referring to?

[Savannahmann]

133. I wonder if a sign on the door would work?

To all LEO's. No Warrant, no entry.