Supreme Court considers police searches

ap on Yahoo ^ | 11/08/05 | Gina Holland - ap

[Labyrinthos]

Absolutely not. You can't be beating the hell out of your wife and kids and expect your 4A rights to be intact. There are numerous circumstances where obtaining a warrant could lead to the death and/or severe injury of others whose right to life and not being bashed around trump your, or my, 4A rights.

That's what the Supreme Court has said about the 4th Amendment, and the exception you are refering to might even be something that should be in the Constitution, but its no where to be found except in the minds of a handful of judges who decided to add the exception. Making up provisions that aren't there is a dangerous precedent.

[GrandEagle]

Sorry if the truth offends you.

Not offended at all my FRiend. If the second part of the sentence doesn't apply to the first, then there is absolutely no point in even adding the second phrase sense it has no meaning except in the context of the sentence. The whole point is to provide the capability to search when needed, but to insure the reasonably of the search, the need is assessed by a judge and a warrant issued.

[longtermmemmory]

i think the scenario being envisioned is more a domestic violence situation where the "beator" says no and the "beatee" says yes.

HOWEVER, I think this smacks of occupant shopping in much the same way as the courts see forum shopping as a no no.

The police mearly wait for the 16 year old (which is all that is required in age for most states for service of process btw) and ask the child if it is ok to go in.

I think it really matters what the facts are in this case and the court have better CHAIN their ruling to those SPECIFIC facts.

[ApplegateRanch]

I thought NO meant NO..isn't that what we've been taught for umpteen years??

Only whe she says, "No!"

[5Madman2]

Yes, freezing the scene and getting the warrant is always the better option, and it can be a fairly quick process, but certainly not the "5 minute" telephone call described.

So many factors, so little information to do an analysis.

Thanks

[GrandEagle]

i think the scenario being envisioned is more a domestic violence situation where the "beator" says no and the "beatee" says yes.

I did understand this. There is not now, nor has there ever been, any prohibition where the police could not enter to relieve a domestic violence situation. There is a big difference between arresting a person who is committing, or had just committed a crime, and snooping around to see what else you can find while you are there. I believe the domestic violence issue is a straw man of a sort, not related to the issue at hand. I agree that the matter may be a good one for the courts.

Cordially,
GE

[AuH2ORepublican]

"If the second part of the sentence doesn't apply to the first, then there is absolutely no point in even adding the second phrase sense it has no meaning except in the context of the sentence."

---

I think all of the first eight amendments have several clauses that are unrelated (e.g., the 5th Am talks about grand jury presentment, double jeopardy, takings and other matters that have nothing to do with one another). The way I see it, the 4th Am actually has two clauses that have something to do with one another (both have to do with searches by the government), but one has to do with the reasonableness of the search, while the second imposes a limit on the ability of the government issuing a warrant to protect the police from liability. I will grant you that if there is probable cause and specificity and a judge thus issues a warrant, it would be very difficult to argue that such ensuing search would not be reasonable, but that does not mean that the opposite is true (that a warrantless search is per se unreasonable).

[GrandEagle]

but one has to do with the reasonableness of the search, while the second imposes a limit on the ability of the government issuing a warrant to protect the police from liability.

I have searched both the Federalist and Anti-Federalist papers and have found no support for your position. I have, however, found a wealth of support in the anti_federalist papers to support my position. In fact, a couple of states, PA being the most vocal, would not enter into the agreement without the guarantee to be free from search and/or seizor without a warrant supported by evidence. I find absolutely no evidence that they though a warrant to be evil, but have found where they found searches unsupported by a warrant that had supporting evidence to be - and I quote - "grievous and oppressive"

If you have any supporting evidence I would be interested in hearing it.

Cordially,
GE

[An.American.Expatriate]

Intersting . . .

On the one hand, two people have equal rights to privacy and, since both are present, one can not speak for the other.

On the other hand, the police were responding to a domestic disturbance complaint - where, likely, access to the domicile would be needed to ascertain whether a crime was being comitted (remember that it can be assumed that one or the other of the persons present could be "under duress" and unable to tell the police what occurred.)

Lastly, it seems obvious that the women used the situation to implicate her husband in a crime other than the one being investigated . . .

IMHO, the court should allow the entry into the domicile for the purpose of discovering whether the complaint was vaild - anything beyond that, should have needed a valid warrant.

[mysterio]

It wouldn't be a problem if the police just got a warrant. They shouldn't be able to come in without a warrant even if you take out a full page ad in USA Today inviting them to. If they have a warrant, it doesn't matter who says come in or don't.

Not surprised to see the usual "if you're not doing anything wrong" crowd in here tossing in their vote for tyranny.

[ZULU]

"Don't we have to look to social understanding and the right to privacy?" O'Connor asked. "The wife says come on in and the husband is right there and says no."

I guess O'Connor will have to consult with French or German law to settle this one.

[downtoliberalism]

You are failing to remember that one of the home owners asked the police to remove the contraband. Also, it was not just a thought that the husband was a drug addict.

Don't misunderstand. It is obvious the police must work within the confines of our laws. In this case, I believe that they did.

[AuH2ORepublican]

GR, an explanation of how the text, structure and history of the 4th Amendment shows that it is best interpreted as two separate clauses, and thus not requiring warrants in order for a search be deemed reasonable, may be found in pages 3-13 of the following PDF: http://islandia.law.yale.edu/amar/lawreview/1994Fourth.pdf
Perhaps it won't convince you, but I think you'll at least find the history and analysis interesting.

If you're interested in this and other issues of interpretation of the 4th Amendment, and have an hour to spare, read the whole article (it's 67 pages).

BTW, I know that I'm in the minority when it comes to the Warrant Clause, but I'm too much of a textualist to believe otherwise. (If you can find the old Kelo threads, you'll see that I similarly make a textual argument that the 5th Amendment does not require courts to determine whether a taking is for public use, but that a whole other matter).

FReegards,

AuH2O

[GrandEagle]

Thanks for the info.
You may be right in that we will not agree, but I always have more room for additional information.


Cordially,
GE

[Nhunt52]

"This is reason enough to recognize that granting the power to refuse entry to the suspect by denying the victim the right to request police assistance would be a miscarriage of justice."

With that statement, you are assuming that the wife is the victim of something, and the husband is the suspect.