Wednesday, March 22, 2006

Well, The U.S. Supreme Court handed down an opinion today that should lend some comfort to civil libertarians (who had begun to fear, quite frankly, that protections against search and seizure in this country were beginning to constitute a dying body of law). The Supreme Court held that in cases where the police are seeking to perform a search in a home where at least two residents are cohabitating together, permission to search the home from one of the residents without permission from the other resident (especially when the second resident explicitly refuses to give permission) is not sufficient to provide a basis for a warrantless search.
Prior to this, the law seemed to indicate that if any party residing in the home gave permission to search, then officers were entitiled to search the house regardless of the wishes of any other cohabitants who were also living there (there are additional issues for locked rooms inside the house that the person granting permission to search doesn't have access to and so forth, but you get the general idea...).
Anyway, in general, as most of you have surmised by now, Steanso is typically a pretty big civil libertarian. I can definitely see why it's a good thing to have a rule that prohibits your crazy-ass roommate from giving the cops permission to enter and raid your place just because that roommate gets mad at you and decides to call the police. It's nice to know that your privacy is protected and that even people who live with you with can't give that right away.
On the other hand, maybe as a result of my new job, I can see how this new ruling is going to make things much more difficult for the police- especially when they're relying upon consent as a valid basis for their search. The need to gain consent from each and every member of a household may make consent searches extremely chaotic (if the offense reports that I read in my current work are any indication, it may be difficullt in many situations to determine who lives in a given home [as opposed to visitors] and to then make sure that consent to search has been given by each individual who lives there. If officers think that they've gotten permission to search a residence from all of the occupants of the house, but then, still acting in good faith, overlook one of the residents, does this render the search invalid?
I guess I'm just saying that the old law had more of a "bright line rule" for officers to follow and adhere to in the field- namely, that it was ok to enter a residence once you were given permission from anyone who lived there. With this new rule the officers have to make sure that they have gotten permission from everyone who lives in a home before entering, and my own prior experience with criminal clients has taught me that criminals are a pretty transitory group. Many of them float around and live with different people, and at any given time, some of the larger groups or families may not even be exactly sure about who considers themselves to be a resident of a given home at a given time. You can look at utility bills and who gets the mail at the house, but that may not tell you everyone who is actually staying there.
Anyway, this new ruling only deals with warrantless consent searches of homes and says nothing about searches which occur in emergencey situations (e.g., someone may be hurt and hidden in the house somewhere), exigent circumstances doctrine (e.g., evidence may be in danger of being destroyed unless a search is promptly conducted), or searches with warrants.
I guess the most important realization to come out of this pretty surprising ruling is that it's another indication that the court may not have swung nearly as far to the right as many had feared. First Alito comes out of the gate with a ruling that upholds a stay of execution for some guy who wants to challenge the constitutionality of lethal injection, and now this? We've got some new justices, but it doesn't seem that they're ready to burst into our homes and force us to go to church at gunpoint just yet....

8 comments:

Anonymous said...

Ooooh, the court reporters are going to make lots of money from these pre-trial hearings!!!

biketrash

Steanso said...

We all know that court reporters are already filthy rich in the first place, Biketrash! ( I heard that one of them buys mopeds in her spare time and plans expansions onto her house)

Lunch with Jason said...

Jason, Jason, Jason... less than 12 months (isn't it?) at our lovely Travis County CA's Office, and you're already abandoning your civil liberties roots? (Meant as a joke there buddy, not actually an ad hominem attack...let's see if I can put it into words.)

First and foremost, this decision certainly doesn't stand for the proposition that the police "need to gain consent from each and every member of a household" before conducting a search. Far from it indeed. The facts in this case were that the member of the household in question was asked for permission to search, and according to the opinion "he unequivocally refused".

So if there's any bright line rule here, it's that in the face of 2 or more occupants of the house, one saying yes the other saying no, the police have to err on the side of the person who is saying he doesn't want his house, car, purse, whatever searched. That's a far far different thing than the police needing to round up everyone who might live in the house and getting their permission.

Also folks who decide they want to read the decision will find out the wife giving permission was no longer living at the house, and the police knew that. So she's not even an occupant at the house.

Certainly you don't want every transitory criminal (cough cough CRACKBASS cough cough) that's ever crashed on your couch to be able to give permission to A.P.D. to search your entire house, when you're standing in the doorway telling them no, do you?

Steanso said...

Man, I've screwed this up. Lunch is right. This case is only about situations where one person gives consent while another specifically refuses. This makes this a much narrower case than I thought (applying to fewer situations), but it still shows a surprisingly liberal leaning by the court, in my opinion.

Steanso said...

Also, the case is surprising in that, in a potential situation where there may something illegal going on in the house that one of the residents wants to put a stop to but the other resident wants to conceal (perhaps in a domestic violence situation where the police don't have enough for exigent circumstances), the police will not be able to enter the house under this rule so long as one of the occupants doesn't want them inside (which sucks if one resident is afraid to tell the cops what is actually going on, but wants them to come into the residence to help resolve some situation). And I still think the cops are going to have a lot to deal with if they get one resident giving them permission and another denying them entry. Do they have to verify which of the parties has a superior claim as to residency? (maybe the person who wants to deny the search is renting a room within the house or is a guest on an extended stay). I need to read the opinion more closely, but it still seems pretty screwy. If for no other reason than simplicity's sake, I think I liked the old rule better.

Lunch with Jason said...

Souter correctly calls out Robert’s domestic violence argument in his first written dissent as a “red herring”. The majority opinion states “this case has no bearing on the capacity of the police to protect domestic violence victims”; and it goes on to do a pretty good analysis of why. (Also, by way of being the majority opinion, that pretty much ends using this case in a domestic violence defendant’s favor.)

Also, with Alito sitting this one out, and Roberts firmly planting himself in the Scalia/Thomas corner, I’m not sure why this shows us that this court is particularly “liberal leaning”. Most disappointing to me is Roberts’ adoption of Scalia’s normal writing style in dissent: “disagree with me, and I’ll personally attack you for your stupidity”.

Anonymous said...

Well, this has turned out to be a big letdown. How can attorneys go on and on ad nauseum for page after page when the issue is narrowly defined?

Wow! That was an unrealistic thing to say. I take it back!!!

biketrash

Steanso said...

I think that calling the domestic violence issue a red herring is kind of disingenous and a bit patronizing (especially since I don't really think Souter came up with a good response to the issues that Roberts brought up regarding the family violence scenario). In a lot of situations, family violence victims are not going to spell out the details of their assault (or even mention that it occurred) when their attacker is present. Souter claims that he understands that the police should not be required to come up with a showing of exigency in family violence circumstances, but he doesn't really allow for alternative means of a police search without allowing for the consent of one party. Also, I'm not trying to say that this court is particularly liberal overall, but tightening up the rules for search and seizure (thereby increasing privacy rights and making it harder for law enforcement to enter your home) and putting a stay of execution on a death row inmate are not exactly the ways in which I thought this court would initially make its decisions....