Wednesday, March 27, 2013

Supreme Court Almost Blows Case on Search of Home

The Supreme Court of the United States is a sick joke.

In this case, what should have been a slam-dunk 9-0 in favor of the defendant, turned out to be a razor-thin victory for our rights.

I am a retired local law enforcement officer, a former K9 handler, hate bad guys and am all for nailing people who violate the law. I do not, however, support violating in any way the fourth amendment unless an immediate threat to public safety exists or if a victim cannot be rescued by any other means. In the latter cases, my take was that my job was to end the threat and deal with the courts later.

"The Supreme Court ruled Tuesday that police cannot bring drug-sniffing police dogs onto a suspect's property to look for evidence without first getting a warrant for a search, a decision which may limit how investigators use dogs' sensitive noses to search out drugs, explosives and other items hidden from human sight, sound and smell.

The high court split 5-4 on the decision to uphold the Florida Supreme Court's ruling throwing out evidence seized in the search of Joelis Jardines' Miami-area house. That search was based on an alert by Franky the drug dog from outside the closed front door.

Justice Antonin Scalia said a person has the Fourth Amendment right to be free from the government's gaze inside their home and in the area surrounding it, which is called the curtilage.

"The police cannot, without a warrant based on probable cause, hang around on the lawn or in the side garden, trawling for evidence and perhaps peering into the windows of the home," Justice Antonin Scalia said for the majority. "And the officers here had all four of their feet and all four of their companion's, planted firmly on that curtilage — the front porch is the classic example of an area intimately associated with the life of the home."

He was joined in his opinion by Justices Clarence Thomas, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan."

Note the skewed voting pattern.

It took the infamous "Wise Latina", a, otherwise worthless Kagan, and the Constitution-disparaging Ginsburg's joining with Thomas and Scalia to get this most basic of cases right.

I have no idea what, if anything, was going on in the minds of Breyer, Alito, Kennedy, and pig-boy Roberts. Did they ever go to law school?

If they had confessed to have been partaking in the evidence seized from the defendant, their votes and dissenting opinions could at least be understood.

I will avoid a lecture on search an seizure laws, but suffice to say that when it comes to a home police can't peer over fences or look through windows for the purpose of looking for evidence. What they can do is look through vehicle windows and use K9's to search by smell on vehicles and in public places. These do not have the broader protection of the fourth amendment that homes have.

If the cops are at your door for, as an example a health and welfare check, such as when a family member reports that he has not heard from his father, and after waiting for an answer at the door then looks through a window and sees marijuana plants, then the cops would be justified in applying for a warrant. At that point, even if the homeowner later came to the door, the cop would have seen the plants while in the course of doing his job.

I can't believe that the judge issued a warrant in the fist place. The cops seem to have made no effort to obtain evidence by undercover buys, searches of curbside garbage (Except in NJ but that is a separate issue), or any of the other means by which the police can actually work to write up a creditable affidavit.

There was not even a public safety issue involved here; no bombs, meth labs (Which can explode), reports of an imminent mass-shooting, missing kids or women chained up in the basement - nothing to indicate that the cops had no time to act. Even the possibility that evidence was being destroyed by the defendant is unlikely. A growing operation generally has more pot than can be destroyed quickly.

Had this case gone the wrong way, as it almost did, your front door and porch would have been wide open for all sorts of abuses. We are required to allow letter and parcel carriers, visitors, and public officials to be able to knock and/or ring the bell at your door. To have this part of your house become a vantage point from which searches can be undertaken would set us up for full governmental control; possibly as a result of a  mere anonymous complaint.

I have to wonder why four justices (Alito and Kennedy being the big shockers for me) voted for such an incredible expansion of law enforcement searches.

We are in trouble.

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