Debate Commentary 03/11

Debate Commentary 03/11

Forum Center: If a person objects to a police search but is not home to state it, do the police still hear it?

By Alex Culpepper
Police have been legally allowed to enter and search a private business or residence under three conditions: with a warrant from a judge who believes the police have shown a compelling reason to search, with probable cause based on suspicion of unlawful activity – such as someone screaming for help – and consent from an occupant who agrees to the search. Sometimes, though, occupants of a residence have disagreed about whether to consent to a search. In 2006, the U.S. Supreme Court said when multiple occupants do not agree on consent, the law sides with the occupant who does not consent, thus forcing the police to get a warrant.

In February, the Supreme Court adjusted those consent rules based on a case involving Walter Fernandez of California. A few years back, Los Angeles police sought Fernandez on suspicion of a violent crime. They tracked him to an apartment where Roxanne Rojas, his girlfriend, answered the door. She consented to let them in, but Fernandez refused admittance. The police noticed she looked as though she had been beaten, so they took Fernandez in on charges of domestic violence. They returned later, Rojas granted consent and police found evidence of some serious crimes committed by Fernandez. He was charged, convicted and sent away to prison for 14 years. Fernandez and his legal team challenged the search and seizure as a Fourth Amendment violation because he objected to the search. Unfortunately for Fernandez, the court’s ruling upheld the search and it has caused a stir about warrantless searches.

The court majority and supporters of the decision say no warrant was needed. Consent was drawn from Rojas, and her consent overrode Fernandez’s objection because he was not present – even though he previously objected. Supporters further say the court claimed undertaking the warrant process in a case like this unnecessarily burdens the police investigation and the judge reviewing the warrant because consent to search was already given and no civil rights were violated. They say the rights of the person who consents to the search of his or her own residence cannot be disregarded.

Opponents of the ruling claim this marks an expanse of police power at the expense of the Fourth Amendment. They say it empowers warrantless searches by sidestepping the right of a resident who has objected to a search of a residence – in other words, police can just wait for a person who objects to a search to leave and then get consent from someone present. Opponents also argue in this case the police could have easily secured a warrant, and this ruling simply hands the police another excuse to forego the warrant process intended by the Constitution.

This was the latest in a long line of recent Fourth Amendment cases, and according to critics of the ruling, it seems to overturn the Court’s decision in 2006 and scratches another requirement for getting a warrant. Supporters of the decision say a warrantless search is justifiable with the consent of a resident regardless of whether another one has previously objected.

Reach DCP forum moderator Alex Culpepper at AlexCulpepper@DaytonCityPaper.com

 

Commentary Forum Question of the Week:

The U.S. Supreme Court ruled police need no warrant to search a residence as long as one resident who is present consents even though another resident has objected to the search. Does this ruling violate the constitutional rights of the resident who objects
to the search even if that person is not present at the residence?

 

Commentary Left: Top ten: Breaking down the Bill of Rights

By Marianne Stanley

Ahhhh … just one more nail in the coffin of our once-pristine, once-sacred Bill of Rights. The Fourth Amendment is clear: “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.”

While no one is disputing Walter Fernandez was pretty much a scumbag, engaging in assaults, robbery and other forms of aggression and brutality, our Constitution – which includes the Bill of Rights – is clearly and carefully worded, most likely so this kind of ruling would never happen. The court erroneously allowed the outcome – put the bad guy behind bars – to justify the means – trash the Fourth Amendment.

The last thing we need in these times of rapidly increasing police power and brutality is a ruling to strip away even more of our rights. How can anyone be secure in their person or home when the very clear underlying requirement for a warrant is so blatantly ignored? Before returning to this issue, let’s take a look at how key constitutional rights have been gutted within just the past decade or two:

First Amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

We’ve pretty much lost that one in its entirety – from SWAT teams violently attacking peaceful protesters – think “Occupy” – and arresting them in absolute defiance of their right to assemble and petition the government, to seeing fundamentalist religious beliefs becoming the sole driving force behind a cascade of legislation to limit basic individual freedoms like those involving reproduction and marriage.

Second Amendment: The right to bear arms. Thanks to gun manufacturer greed and NRA lobbyists, this is one amendment that has been expanded to actually threaten law-abiding citizens with the crazies out there strutting around with loaded or unloaded – we never know – guns strapped to their backs or hips, imperiling innocents everywhere at all times.

Third Amendment:  Quartering of soldiers.

Fourth Amendment: The Fourth Amendment says search and seizure must be limited and arise only after a court receives specific information resulting in a warrant.

Fifth Amendment: No person shall be “compelled to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law.” It makes one wonder how police these days can frequently and casually impound cars on the spot for minor offenses (like not paying a traffic fine), leaving their occupants stranded without a way to get home, knowing these folks don’t have the money to get their cars back. Police also routinely confiscate the property and homes of people arrested for suspected drug offenses without adhering to this due process requirement.

Sixth Amendment: The right to a speedy and public trial by an impartial jury and the right to be informed of criminal charges. Tell that to the elderly nun, countless environmental or civil rights protestors and even those college revelers recently arrested despite their right to assemble peaceably.

Seventh Amendment: The right to jury in federal civil cases.

Eighth Amendment: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Well, we’ve pretty much lost the entirety of that one, too. Fines are often excessive, especially when levied against the poor, and it can easily be argued being imprisoned for years due to drug use and non-violent offenses violates this amendment.

Ninth Amendment: The Ninth Amendment is interpreted as the right to privacy. Kiss that one goodbye, despite the 1985 ruling which said banning contraception is illegal, as is banning a woman’s right to an abortion. All other elements of privacy, like phone calls and emails, are also gone, thanks to the NSA and other encroaching government actions.

Tenth Amendment: Reserves some powers to the states.

Interestingly, the dissenting opinion in Fernandez v. California came from the three women on the court. Justice Ginsburg wrote, “There is a marked distinction between private visitors and police. Police have power no private person enjoys.” Even a visitor, Ginsberg said, would not be entitled to rummage through the dwelling. Warrants, in this age of technology, are easily and quickly available. The dissent noted at the Fourth Amendment’s “very core” “stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion. The physical entry of the home is the chief evil against which the Fourth Amendment is directed.” Consent of a resident is not enough.

Ginsburg went on to say, “If the police can gain the consent of someone other than the suspect, why should the law insist on the formality of a warrant? Because the Framers saw the neutral magistrate as an essential part of the criminal process shielding all of us, good or bad, saint or sinner, from unchecked police activity.”

As uncontrolled massive police activity and use of unnecessary force ramps up, this was no time for the Supreme Court to further diminish our protections and privacy. Without a court warrant issued on probable cause and under oath, police had absolutely no right to enter the home in this case.

Marianne Stanley is an attorney, college professor and former journalist who believes many of our nation’s ills could be cured if our children were taught critical thinking skills beginning at the elementary level and continuing through middle and high school. She can be reached at MarianneStanley@DaytonCityPaper.com.

 

Commentary Right: The Fourth Amendment in the 21st century 

By Dave Westbrock

On Feb. 25, by a 6-3 decision, the Supreme Court of the United States (SCOTUS) ruled a warrantless search and seizure could be carried out if just one member of a household allowed police entry. The case precipitating this court case is a good example of how bad cases can turn into bad law – or, in this case, bad judgment. The plaintiff, an obvious lawbreaker, general bad actor and subsequent abusive felon had his apartment searched when one occupant allowed police ingress while the felon occupant was not at home. He objected and was subsequently brought as the plaintiff in the case that went to the SCOTUS.

The finding was a contradiction of a 2006 SCOTUS decision, which stated if one household-member objected, a warrant was necessary. The Fourth Amendment states, “The right of the people to be secure in their persons, houses, papers and effects, against unreasonable search and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause…” The Framers could not be more explicit in this citation, given they had lived through the excesses of the Quartering Act, and, as stated by Joseph Warren in his “Rights of Infringement and Violation of Rights,” “thus our houses and even our bed chambers, are exposed to be ransacked, our boxes, Trunks and Chests broke open, ravaged and plundered by Wretches…” They realized the excesses of a government that operated by fiat and decisions made by officials without the balance of judicial oversight meant an overreaching government which could trample upon the rights of its citizens. Such was a cardinal principle of constitutional government.

There is a growing impression among the citizenry that government is increasingly being ruled by fewer and fewer of those chosen as our elected representatives. Police actions may be good, and might protect the inhabitants of a particular city or county. However, as in the case of several southern jurisdictions prior to the advent of the Civil Rights Movement, police action can be arbitrary and capricious. The same may be said of 1920s and 1930s Chicago, when bribery and corruption ruled. In both cases, the local judiciary may have been a willing partner in crime, but an independent judiciary is at least a barrier against such corruption.

In the internal argument underlying a prior ruling, Georgia v. Randolph, the court ruled in favor of the principle if one inhabitant objected to search, another may not overrule, and thus no standing issued for search without warrant.

This has been heralded as a debate between strict constitutional constructionists and those who believe in a “living constitution,” subject to societal change. That is, the validity of the Fourth Amendment had relevance when the man – as master of the household – voted and made most substantive decisions, including the allowance of household search. Such was quoted by Justices Breyer and Stevens in explaining the basis for Georgia v. Randolph. But the argument has little to do with the originalists versus the living constitutionalists. It has more to do with the basic right of citizens to defend the status of their homes, whether man or woman.

This argument is very simply an argument of whether or not means are justified by salutary ends. Prime examples that are not directly relevant to this case include seizure of telephone records and warrantless wiretaps, as well as seizure of computer records, emails and documents without a court order. There is evidence such practices are occurring at this moment, made all the more necessary, so the argument goes, to preserve national security. The tragedy of 9/11 was responsible for the Patriot Act, which many believe is an infringement of constitutional rights. Such an argument inevitably leads to a government agency – like the IRS – to base favorable tax treatment on one favored political element over another, leading inevitably to corruption and totalitarian philosophy.

Our system, up to present, has preserved the delicate balance between the rights of individual citizens and those of a whole – represented by local, state or federal government. Our system of laws and jurisprudence is similar to British common law, but in ways different. The differences have led to what we in the U.S. would consider a violation of free speech.

Such differences have, in the past, preserved our unique federal confederation and prevented a Western socialism found in European governments. They are why the United States remained strong and individualist nation in the late-19th and pre-World War I 20th centuries, when Europe was going through the pains of Marxist revolution manifested by the German welfare state and French socialism.

There is a reason why the U.S. is not now a socialist state, explained so elegantly by Barbara Tuchman in “The Proud Tower.” A large part of it is the value the Constitution and its adherents grant to the principles of respect for property manifested not only in the Fourth Amendment, but in the Bill of Rights as a whole.

We are also living in a time of an imperial presidency, wherein the president rules by executive fiat without the will of Congress. This telescopes the importance of respecting Bill of Rights protections against unlawful search and seizure. You never know who may be the next man in charge.

Dr. Westbrock has been in private medical practice for 35 years. He was the Republican candidate for the U.S House of Representatives in 1994 and 1996. He has written and lectured extensively on the subject of health care reform and health care policy. He can be reached at Dave.Westbrock@DaytonCityPaper.com

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