Back when my law degree’s ink was damp and Richard Nixon had just begun what proved to be less than ‘Four More Years!’, the Supreme Court under Warren Burger started scaling back the burden on police to obtain search warrants in the war on drugs to show it was tough on crime.
Here’s the troublesome, if pretty straight forward, Fourth Amendment:
The 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.
The Court began by allowing cops to search cars in traffic stops. No expectation of privacy in your car, you see, not like your house or body. The holdings didn’t make any more sense then.
Forty years later, we have asset forfeiture alleys in places like Nashville where police prey upon travelers to support their department budgets. Scenting marijuana is always a good excuse.
The Conservative Ascendency’s assault on the Fourth Amendment has continued unabated. Adam Liptak reported today in the New York Times:
The case about searches followed a confrontation at the Los Angeles home of Walter Fernandez, who was suspected of a role in a robbery. “You don’t have any right to come in here,” he told police officers. “I know my rights.”
Under a 2006 decision, Georgia v. Randolph, that objection was enough to bar a search of his home without a warrant even if another occupant consented, at least so long as Mr. Fernandez remained present.
The police arrested Mr. Fernandez on seeing that he had apparently beaten his domestic partner, Roxanne Rojas, who was also there. An hour later, with Mr. Fernandez at a police station, the police returned, and Ms. Rojas let them in. They found weapons and evidence linking Mr. Fernandez to the robbery.
He was convicted on robbery, gun and domestic abuse charges after the trial judge refused to suppress the evidence collected at his home, and he was sentenced to 14 years in prison.
The question for the justices was whether the police should have obtained a warrant in light of Mr. Fernandez’s objection. Justice Samuel A. Alito Jr., writing for the majority, said no.
The general rule, he said, is that any occupant’s consent is sufficient. The 2006 decision, he added, was limited to objections from people who were physically present. Expanding that exception after the objecting occupants were gone, even at the hands of the police themselves, he wrote, “would raise a plethora of problems.”
Among them, Justice Alito wrote, was how long the objection had to be respected. “A week?” he asked. “A month? A year? Ten years?”
Now Justice Alito is widely regarded as so much smarter than you and I that it must be disrespectful to respond, ‘Long enough to get to the squad car and call an assistant district attorney who then can get a warrant authorized by a duty judge. So, maybe a couple of hours.’
I have a genuinely disrespectful response that more befits Justice Alito’s question:
‘There’s no “plethora of problems” here. In fact, there’s none. Your question assumes, in a situation where neither hot pursuit nor the imminent destruction of evidence exists, a limit on how long an officer denied entry need wait under the Fourth Amendment before searching the house without a warrant. Even for one who’s not an Originalist, it’s hard to read it that way.’
In dissent, Justice Ruth Bader Ginsburg, joined by Justices Sonia Sotomayor and Elena Kagan, wrote that “the police could readily have obtained a warrant to search the shared residence.”
“Instead of adhering to the warrant requirement, today’s decision tells the police they may dodge it, never mind ample time to secure the approval of a neutral magistrate,” Justice Ginsburg wrote.
Bush v. Gore and Citizens United v. Federal Election Commission momentarily illuminated for all the restructuring of American civil society begun by Richard Nixon and his appointees to the Court. In the hundreds of obscure cases, like Fernandez v. California, we see the details of our new relationship with power.
As I’ve said before, read Ingo Müller’s Hitler’s Justice (Harvard Univ. Press, 1991) on how the German judiciary paved the way for Hitler and then abetted his worst.