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Kagan, Sotomayor, Ginsburg, and the 4th Amendment
New American ^ | 16 January 2011 | Bob Adelmann

Posted on 01/17/2011 5:46:00 AM PST by IbJensen

When the U.S. Supreme Court agreed to hear oral arguments on a Fourth Amendment case decided by the Kentucky Supreme Court (Kentucky v. King), alarm bells went off. Under the Fourth Amendment, as readers are no doubt aware, “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.”

But what if police pick the wrong house, pound on the door loudly, announce that “This is the police!” and then, smelling pot, break down the door without a warrant and arrest the homeowner for violating local drug laws? What if the homeowner is sentenced to 11 years? What if all appeals rule in favor of the police?

Picture this: It’s 9:30 at night, and a police informant does a drug deal with a known narcotics dealer outside an apartment complex in Lexington, Kentucky. Upon completion of the deal, the informant calls in the local police waiting nearby to arrest the miscreant, but isn’t clear about which apartment the dealer entered: door number One, or door number Two? The police arrive at the scene, and pick door number One, occupied by Hollis King and some friends, no relation to the dealer behind door number Two. The police, smelling marijuana, bang on the door, and, when they hear movement inside, break down the door, find drugs, and arrest King and his friends.

Despite claiming that the police had no proper warrant, King gets 11 years. The police officers claim an “exception” to the Fourth Amendment, called an “exigent circumstance,” and the courts buy the police story. According to testimony, the officers not only smelled the burning weed, but, after announcing themselves loudly, they “heard movement” inside the apartment that they concluded was the occupant trying to destroy potentially damaging evidence. Since this was happening in the instant, there was no time to get a warrant; they had to move quickly, and so they kicked down the door, found some drugs, and arrested King.

When the case reached the Kentucky Supreme Court, however, that court ruled that there was no “exigent circumstance” and, even if there was, the police couldn’t use that as an excuse because their actions created the “circumstance" in the first place. Said the court,

While probable cause existed for police to obtain a warrant to enter the apartment occupied by King, police did not have proper exigent circumstances to justify a warrantless entry. Further, the entry was not justified by imminent destruction of evidence. The odor of marijuana alone did not provide a justification, and any exigency arising from the sounds of movement inside the apartment was created by [the] police, and therefore cannot be relied upon as a justification.

Now the Supreme Court has agreed to hear the case. Justice Elena Kagan explained her concerns: “One of the points of the Fourth Amendment is to ensure that when people search your home, they have a warrant [but] of course there are exceptions to that.” Justice Ruth Bader Ginsburg wondered aloud whether the lower courts’ positions, if allowed to stand, would allow the police to “go to the apartment building and then sniff at every door,” trying to find a reason to invade the home without a warrant. Justice Sonia Sotomayor expressed concern as as to whether the police could enter a dwelling at any time without a warrant, so long as they thought some kind of wrongdoing was taking place on the other side of the door. She wondered if the police could use the “King” excuse about hearing suspicious noises inside as sufficient probable cause to enter.

On the other hand, Justice Antonin Scalia opined that the police did nothing wrong. When they knocked on the door, the occupants could simply have answered and denied the police entry without a proper warrant: “Everything done was perfectly lawful. It’s unfair to the criminal? Is that the problem? I really don’t understand the problem.” But the homeowner did not invite the police in either, and law enforcement's forcible entry raises questions about how secure Americans are in their homes from "unreasonable searches and seizures," the clear language of the Fourth Amendment notwithstanding.


TOPICS: Constitution/Conservatism; Crime/Corruption; Government; News/Current Events
KEYWORDS: 4tha; donutwatch; jbts; scotus; swat
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FYI. Plenty of room available for arguments.
1 posted on 01/17/2011 5:46:01 AM PST by IbJensen
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To: IbJensen
Justice Ruth Bader Ginsburg wondered aloud whether the lower courts’ positions, if allowed to stand, would allow the police to “go to the apartment building and then sniff at every door,” trying to find a reason to invade the home without a warrant. Justice Sonia Sotomayor expressed concern as as to whether the police could enter a dwelling at any time without a warrant, so long as they thought some kind of wrongdoing was taking place on the other side of the door. She wondered if the police could use the “King” excuse about hearing suspicious noises inside as sufficient probable cause to enter.

Note this day in history, I agree with Ginsburg and Sotomayor.
2 posted on 01/17/2011 5:50:24 AM PST by TSgt (Colonel Allen West & Michele Bachman - 2012 POTUS Dream Team Ticket!)
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To: IbJensen

let’s pick the wrong house accidentally on purpose...........po po lies we all know that


3 posted on 01/17/2011 5:50:41 AM PST by yldstrk (My heroes have always been cowboys)
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To: TSgt
Note this day in history, I agree with Ginsburg and Sotomayor.

My thoughts exactly.

I also don't want anyone to shoot my dog.

4 posted on 01/17/2011 6:02:22 AM PST by Marylander
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To: TSgt

I agree. Though it pains me to say the same thing you just said. I agree with Ginsburg and Sotomayor.

One thing left out of the story... what did they find in that apartment that resulted in an 11 year sentence. That sounds excessive for marijuana.

But, like all lousy journalists writing today (and they do seem to be in the vast majority these days), they leave out little “details” like that.


5 posted on 01/17/2011 6:03:39 AM PST by samtheman
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To: TSgt

Seriously - no warrant, no search, and especially no breaking and entering.

And no “dynamic entries” either. These need to stop POST HASTE. How does the homeowner know the difference between “police getting the wrong address” and “criminals yelling ‘police’ as they break down your door to harm your family”?
How does he know whether to go into “defending the family” mode (and get killed by the police) or cower on the floor for the “authorities”?


6 posted on 01/17/2011 6:06:54 AM PST by MrB (The difference between a (de)humanist and a Satanist is that the latter knows who he's working for.)
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To: IbJensen

Great. Now we have the 3 wicked witches on the Supreme Court.


7 posted on 01/17/2011 6:11:46 AM PST by freekitty (Give me back my conservative vote; then find me a real conservative to vote for)
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To: IbJensen

To force entry due to the supposed odor of grass is questionable. The PD could have waited for a warrant to be issued....and in this case a judge could be relucatant to issue a warrant. But suppose the cops smelled gas emanating from a residence and knocks on the door met with silence....the PD in my estimation would be justified to enter immediately if safety was a concern.


8 posted on 01/17/2011 6:24:45 AM PST by kenmcg
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To: IbJensen
Kagan, Sotomayor, Ginsburg, and the 4th Amendment....

Just the recitation of those three names and the realization that they are Supreme Court justices is enough to make me ill.

9 posted on 01/17/2011 6:31:14 AM PST by Rummyfan (Iraq: it's not about Iraq anymore, it's about the USA!)
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To: Marylander; TSgt

I too agree with them.. calling doctor for head exam next


10 posted on 01/17/2011 6:31:37 AM PST by SF_Redux (the scarier part about all these Marxists is, that a few of them can breed .. with the opposite sex)
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To: IbJensen

Whiskey Tango Foxtrot.

I feel sick. I actually agree with Sotomayor, Ginsberg and Kagan? What is wrong with me?

Better yet, what is wrong with Scalia?


11 posted on 01/17/2011 6:42:08 AM PST by apoxonu
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To: IbJensen
I have several problems with the mentioned case.

First off, you don't get 11 years for having a small amount of pot for personal use.

Second, no pot user lives next door to a known pot dealer and isn't involved with that dealer in some way. Common sense tells you that the neighbor of the dealer, was also a dealer. See point one.

This smells like a piss poor case to take all the way to the USSC, just to get every shred of evidence thrown out.

Final point, it costs big bucks to ever take a case to the USSC, how does a non-dealer, living in low rent housing, come up with that kind of cash? See point one.

12 posted on 01/17/2011 7:00:51 AM PST by Beagle8U (Free Republic -- One stop shopping ....... It's the Conservative Super WalMart for news .)
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To: IbJensen

I was sure that they had never read the Constitution or the Amendments. I have to eat my words on this one. They seem to have it right. My home is my castle and there are strict limitations on when the Government may intrude.

Now if they could just apply that same literal interpretation to the rest of the Constitution I could sleep at night.


13 posted on 01/17/2011 7:17:52 AM PST by Steamburg (The contents of your wallet is the only language Politicians understand.)
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To: Beagle8U

“Final point, it costs big bucks to ever take a case to the USSC, how does a non-dealer, living in low rent housing, come up with that kind of cash?”

I think you’ve got it backwards.

If I read this correctly,he appealed and the Kentucky Supreme Court ruled the entry was unlawful.

I think the State is taking it to SCOTUS.

“When the case reached the Kentucky Supreme Court, however, that court ruled that there was no “exigent circumstance” and, even if there was, the police couldn’t use that as an excuse because their actions created the “circumstance” in the first place. Said the court, “


14 posted on 01/17/2011 7:19:23 AM PST by Bigh4u2 (Denial is the first requirement to be a liberal)
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To: TSgt

Maybe hell has frozen over. I agree with Ginsberg and Sotomayor on this one.


15 posted on 01/17/2011 7:19:54 AM PST by Roklok
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To: IbJensen

“Justice Sonia Sotomayor...wondered if the police could use the “King” excuse about hearing suspicious noises inside as sufficient probable cause to enter.”

But, but...if she’s such a effing ‘Wise Latina’, why does she have to wonder? Shouldn’t a ‘Wise Latina’ KNOW the answer?


16 posted on 01/17/2011 7:47:57 AM PST by 2nd Bn, 11th Mar (Ask the American Indian what happens when you don’t control immigration)
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I also agree with the ladies.


17 posted on 01/17/2011 7:56:42 AM PST by webboy45
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To: IbJensen

There is a hidden argument in here as well.

As “common practice” police no longer arrest people for just drug possession. This is because they have learned that juries are no longer amicable to conviction based on drug possession alone. So guaranteed, whenever a drug arrest is made, there will be a second charge unrelated to drugs. This gives the jury a psychological evasion, no matter how contrived the charge, of conviction for something else.

However, “contrived” charges can still result in serious prison time.

This also impacts violations of the 4th Amendment. Say the police decide to make an “exigent” search of your home because they “smelled marijuana smoke”, which is both subjective and cannot be cross-examined later. Then they “heard noises within”, which again cannot be cross-examined.

They charge into your dwelling without warrant. If they do not identify themselves, it is just your word against theirs.

Even if there are no drugs at all, they will be looking to charge you with a “contrived” offense. As a standard unofficial policy, many police departments now tell their officers to kill any dogs found, as the most it may cost the police is a small fine, and it will establish their dominance and control of the situation.

Cities have a policy of “sue us” for the broken door, dead animals, and any emotional distress, figuring they will pay little. So apologies are out of the question, as they could be seen as an admission of guilt.

Once inside your dwelling, a comprehensive search will destroy all your food, confiscate any guns and ammunition, and keep you and your family handcuffed and on the floor, whatever your state of dress or undress, even if someone is taking a shower.

Even if you are totally innocent, the police can arrest you for resisting arrest if they so choose. Otherwise they can “hunt and peck” looking for common criminal offenses like possession of any scheduled medicines that are expired or no longer have a current prescription. They can break through any locks that deny them access, punch holes in walls and the ceiling, tear up carpet and destroy furniture. No limit, really.


18 posted on 01/17/2011 8:10:37 AM PST by yefragetuwrabrumuy
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To: yefragetuwrabrumuy

Sadly you are right.
I don’t like having to count on the cops being reasonable and honorable.


19 posted on 01/17/2011 8:27:03 AM PST by Clump (the tree of liberty is withering like a stricken fig tree)
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To: Bigh4u2
Ok, I missed that fact.

It still doesn't explain how he had the money to appeal all the way to the state SC.

I still think the guy was in fact a drug dealer himself, and there are better cases to take to the USSC on the ‘no warrant’ issue.

20 posted on 01/17/2011 8:44:01 AM PST by Beagle8U (Free Republic -- One stop shopping ....... It's the Conservative Super WalMart for news .)
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To: Beagle8U

“It still doesn’t explain how he had the money to appeal all the way to the state SC.”

Court appointed lawyer?

Don’t know.


21 posted on 01/17/2011 9:00:21 AM PST by Bigh4u2 (Denial is the first requirement to be a liberal)
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To: apoxonu

Scalia thinks criminals should be brought to justice. That’s what’s wrong with him.


22 posted on 01/17/2011 9:06:23 AM PST by thefactor (yes, as a matter of fact, i DID only read the excerpt)
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To: thefactor
Scalia thinks criminals should be brought to justice we should live in a facist, boot-jack country where nobody has fourth amendment rights and cops can break down doors based solely on something they smell.

I have two words for that situation - dead cops.

23 posted on 01/17/2011 10:05:13 AM PST by apoxonu
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To: apoxonu

I guess I’m an aberation around here. I don’t like drug dealers.


24 posted on 01/17/2011 10:15:55 AM PST by thefactor (yes, as a matter of fact, i DID only read the excerpt)
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To: thefactor
I guess I’m an aberation around here. I don’t like drug dealers.

You obviously do not like the Constitution either.
25 posted on 01/17/2011 11:50:34 AM PST by microgood
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To: microgood

We could get rid of all the drug dealers in a specific area by carpet bombing it. It would get rid of all drug dealers there.

By the same token, if we submit to an unconstitutional police state, it would also help to crack down on drug dealers.

Now, we know both are absurd. Only leftists think in terms of only examining the furtherance of their goals without regard to the consequences.


26 posted on 01/17/2011 11:53:39 AM PST by MrB (The difference between a (de)humanist and a Satanist is that the latter knows who he's working for.)
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To: thefactor

The wrong party was smoking pot, not dealing it. Regardless, I’ll share a story from my old days living in NH - about 20 years ago.

Buddy of mine lived a few doors down from me in a duplex townhouse. He and his wife were stripping their floors and using chemicals.

Four town cops came to their next-door neighbor to conduct a warranted search for stolen goods. Turned out the guy next door was a neighborhood burglar.

Well, they smelled the chemicals as they were preparing to knock on the neighbor’s door and thought that perhaps they had the wrong address -why, I have no idea. So they knock on my buddy’s door, but didn’t say anything.

Now, my buddy and his wife had stripped from the front door, so they had to move drop cloths and ladders to get to the door. The cops heard them moving things around and broke down the door. They botched it and hit it once and it didn’t break. My buddy drew his .45 thinking it was crooks. His wife grabbed their shotgun and fed a round.

The first cop through the door got a slug in his chest, luckily missing the heart. The second cop almost got his head blown off with the shotgun but luckily the wife had good reflexes and didn’t fire. The first cop lived - barely.

The shooting was ruled justified. All four cops were suspended without pay. The senior officer was fired.

I don’t care what you smell or what you hear. That warrant better have the right address and you’d better ONLY break down doors at the address for which you have a warrant - or you could get dead - cop or no cop.

The police are not a protected class of citizens. They need rules just like anyone else for their own protection as well as that of civilians.


27 posted on 01/17/2011 11:54:55 AM PST by apoxonu
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To: microgood

I’ve taken two oaths to defend it. You? I guess Scalia doesn’t like it much, either. I’m sure you know better than him.


28 posted on 01/17/2011 11:55:37 AM PST by thefactor (yes, as a matter of fact, i DID only read the excerpt)
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To: Beagle8U
Common sense tells you that the neighbor of the dealer, was also a dealer.

That's a fantastic leap in logic, there. I hope you aren't a lawyer.

29 posted on 01/17/2011 12:05:21 PM PST by Cyber Liberty (We conservatives will always lose elections as long as we allow the MSM to choose our candidates.)
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To: apoxonu
The first cop through the door got a slug in his chest, luckily missing the heart.

I hope this taught your buddy the concept of "double-tap."

30 posted on 01/17/2011 12:10:38 PM PST by Cyber Liberty (We conservatives will always lose elections as long as we allow the MSM to choose our candidates.)
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To: Cyber Liberty

In what state do you get 11 years in prison for a small amount of pot for personal use? You don’t!

If he got 11 years he was doing more than just smoking pot pot.


31 posted on 01/17/2011 12:26:46 PM PST by Beagle8U (Free Republic -- One stop shopping ....... It's the Conservative Super WalMart for news .)
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To: thefactor

I see that your oaths didn’t help you support your argument with logic - only scorn.

I think Scalia has it wrong.

The only way this arrest should stand is if the police have a spotless track record for correctness and compliance with law. That cat left the bad years ago. Because a ruling affirming the cops’ actions is so very ripe for abuse, I believe that the need for a warrant correctly identifying the home to be searched (as in: actually targeting the residence they invaded) is necessary. To allow a warrantless search based on an odor and “sounds” is a very subjective standing - one which would be patently below the bar for getting a warrant.

Based on experience, I can’t see giving the police unlimited power to circumvent the fourth amendment, based on the reaction to their prior illegal stop.

Rephrasing the issue, allow me to ask you a direct question. If a policeman stops a motorist without a valid reason, smells pot, performs a search and finds pot, resulting in an arrest, do you believe that the evidence should be thrown out because the policeman had no reason to stop the car in the first place?

If you disagree the evidence should be suppressed because the initial contact with police was illegal, I believe a ton of legal precedent is against you.

If you agree the evidence should be suppressed, why do you believe that the auto is more sacrosanct than the home?


32 posted on 01/17/2011 12:40:25 PM PST by MortMan (I am in no mood to be amused! (Ebenezer Scrooge))
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To: Beagle8U

Because of the crappy reporting, we don’t know why he got 11 years. But you make quite a leap when you say, because he lived next door to a dealer, he was, therefore, another dealer. I disagree with you.

By your reasoning, as another FReeper mentioned, you’d be justified in simply carpet-bombing the entire neighborhood, killing everybody, because there is a drug dealer living there.


33 posted on 01/17/2011 12:44:59 PM PST by Cyber Liberty (We conservatives will always lose elections as long as we allow the MSM to choose our candidates.)
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To: apoxonu

I don’t believe your story.
I don’t believe that cops would get shot at in a home invasion without making sure to kill those that shot at them.

/slight sarcasm


34 posted on 01/17/2011 12:48:27 PM PST by MrB (The difference between a (de)humanist and a Satanist is that the latter knows who he's working for.)
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To: IbJensen

Houston, we have a problem. Arguments needed. Change needed NOW.


35 posted on 01/17/2011 12:50:18 PM PST by SaraJohnson
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To: MrB

Then you’ve obviously never been shooting with cops, nor have you paid attention to stories about cops shooting folks where the cop empties a clip at close range and only two bullets hit the suspect.

Cops are not better shots than civilians and actually, many civilians take target practice far more often than most cops and are better shots.


36 posted on 01/17/2011 12:57:21 PM PST by apoxonu
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To: apoxonu

Ah... an angle that I didn’t think of.
The home invading cops did TRY to kill the occupants that fired at them, but failed.


37 posted on 01/17/2011 12:59:17 PM PST by MrB (The difference between a (de)humanist and a Satanist is that the latter knows who he's working for.)
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To: Clump

From a case in 1964, SC Judge Potter Stewart said:

“We may assume that the officers acted in good faith. But good faith on the part of the arresting officers is not enough. If subjective good faith alone were the test, the protections of the Fourth Amendment would evaporate, and the people would be secure in their persons, houses, papers, and effects, only in the discretion of the police.”


38 posted on 01/17/2011 1:00:22 PM PST by 21twelve ( You can go from boom to bust, from dreams to a bowl of dust ... another lost generation.)
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To: Cyber Liberty; All

I was correct, the guy was a drug dealer. It took awhile to find the facts in this case ( something this article was lacking), but I looked it up.

http://caselaw.findlaw.com/ky-supreme-court/1519905.html

I agree that the cops likely blew the case by kicking the wrong door, but my points were that there was much more to this case than just smoking a joint.


39 posted on 01/17/2011 1:17:09 PM PST by Beagle8U (Free Republic -- One stop shopping ....... It's the Conservative Super WalMart for news .)
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To: Cyber Liberty

“Because of the crappy reporting, we don’t know why he got 11 years. But you make quite a leap when you say, because he lived next door to a dealer, he was, therefore, another dealer. I disagree with you.”

No that isn’t what I said. Read every word of what I posted, in the context that I posted it.


40 posted on 01/17/2011 1:23:28 PM PST by Beagle8U (Free Republic -- One stop shopping ....... It's the Conservative Super WalMart for news .)
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To: Beagle8U

Thanks for the clarification of the facts on the ground. It’s still a leap to assume that, given his physical proximity of the known, warranted dealer, he must naturally be another dealer. But the facts do back you up! It will be interesting to see if the SCOTUS upholds the state Supreme Court.

As a general proposition, I am against Police being able to crash any door they “claim” emanates an odor of marijuana. You can’t cross-examine a subjective call like that, so Police need to err on the side of liberty. That is in opposition to their natural proclivity, which is to treat “civilians” as a lower class than themselves.


41 posted on 01/17/2011 1:23:54 PM PST by Cyber Liberty (We conservatives will always lose elections as long as we allow the MSM to choose our candidates.)
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To: Bigh4u2

See post 39


42 posted on 01/17/2011 1:28:15 PM PST by Beagle8U (Free Republic -- One stop shopping ....... It's the Conservative Super WalMart for news .)
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To: apoxonu
apoxonu said: "Better yet, what is wrong with Scalia?"

That would be my question, as well.

Suppression of evidence obtained unlawfully is our only protection against runaway police. Without some consequence for action out-of-bounds, the police would simply do anything they want and just say, "Oops, we made a mistake" and the Fourth Amendment would mean nothing.

Scalia needs to hold the police to the standard of expecting them to get the correct address. Why should a jury believe the statements of the informant if similar statements to police resulted in searching the wrong home?

Finding evidence behind a door does not change an unlawful search into a lawful search. Imagine the problems we would have if it did.

43 posted on 01/17/2011 1:30:15 PM PST by William Tell
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To: IbJensen

See post 39, and click the link. It has the facts in the case that were totally lacking in this article.


44 posted on 01/17/2011 1:30:38 PM PST by Beagle8U (Free Republic -- One stop shopping ....... It's the Conservative Super WalMart for news .)
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To: Beagle8U
First off, you don't get 11 years for having a small amount of pot for personal use.

Second, no pot user lives next door to a known pot dealer and isn't involved with that dealer in some way. Common sense tells you that the neighbor of the dealer, was also a dealer. See point one.

Nope. The only improvement to your argument by including more of it is that the guy is a pot user living next door to a dealer, so therefore, he is also a dealer. The quote I lifted was in context. It takes more than what you call "common sense" to throw people in jail...or at least it should.

45 posted on 01/17/2011 1:30:38 PM PST by Cyber Liberty (We conservatives will always lose elections as long as we allow the MSM to choose our candidates.)
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To: Cyber Liberty
Ok, you read it all, but still can't understand the FACT that in point #1, ( which I did refer to ), that you don't get 11 years for just a little pot, that is what told me that he was likely a drug dealer himself.
46 posted on 01/17/2011 1:40:51 PM PST by Beagle8U (Free Republic -- One stop shopping ....... It's the Conservative Super WalMart for news .)
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To: Cyber Liberty
From the start of this thread I also said this was a piss poor case to appeal all the way to the USSC, to settle the
warrant/search issue.

I'll explain why I say that. The guy is in fact a scum bag drug dealer, multiple felon. I can see where those facts may give the conservative judges pause, because that guy will walk free if they rule in his favor.

I'm sure the civil liberties lawyers could have found dozens of better cases to settle the issue.

47 posted on 01/17/2011 1:53:00 PM PST by Beagle8U (Free Republic -- One stop shopping ....... It's the Conservative Super WalMart for news .)
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To: 21twelve

That is a good quote.


48 posted on 01/17/2011 1:55:22 PM PST by Clump (the tree of liberty is withering like a stricken fig tree)
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To: Beagle8U

We wouldn’t have known any of this about the guy who got the 11 years, had the cops not violated his 4th Amendment rights by bashing his door in based on 1) an odor and 2) a sound (both subjective calls that cannot be cross-examined later in a court of law). I’ve heard cops brag they can say that about anybody they wish to throw into the slammer, which is why I don’t trust them at all.

This is all poisoned fruit, and I’m disappointed Scalia sees nothing wrong with it. I’m also disappointed in some fellow FReepers.


49 posted on 01/17/2011 2:12:07 PM PST by Cyber Liberty (We conservatives will always lose elections as long as we allow the MSM to choose our candidates.)
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To: thefactor
I’ve taken two oaths to defend it. You?

So has Nancy Pelosi and Harry Reid.

I guess Scalia doesn’t like it much, either. I’m sure you know better than him.

When it comes to the drug war, the Constitution does not exist as far as Scalia is concerned. He is especially hostile to the 4th Amendment, and has only delivered one ruling in support of it.
50 posted on 01/17/2011 6:51:41 PM PST by microgood
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