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posted by Dopefish on Friday February 28 2014, @06:00PM   Printer-friendly
from the freedom-is-not-free dept.

GungnirSniper writes "By a six to three vote, the US Supreme Court has ruled police may enter a home if one occupant allows it even after another previously did not consent.

In the decision on Tuesday in Fernandez v. California, the Court determined since the suspect, Walter Fernandez, was removed from the home and arrested, his live-in girlfriend's consent to search was enough. The Court had addressed a similar case in 2006 in Georgia v. Randolph, but found that since the suspect was still in the home and against the search, it should have kept authorities from entering.

RT.com notes "Justice Ruth Bader Ginsburg joined in the minority by Justices Kagan and Sotomayor, marking a gender divide among the Justices in the case wrote the dissenting opinion, calling the decision a blow to the Fourth Amendment, which prohibits 'unreasonable searches and seizures.'"

Could this lead to police arresting people objecting to searches to remove the need for warrants?"

 
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  • (Score: 1) by emg on Friday February 28 2014, @06:37PM

    by emg (3464) on Friday February 28 2014, @06:37PM (#8670)

    So, uh, couldn't she have, you know, just gone inside and got the kid for them? If the man tried to stop her, the cops could have restrained him while she did so.

    As others have said, this ruling will result in cops arresting people merely to 'encourage the others'. It's as insane as most other recent Supreme Court rulings.

  • (Score: 3, Informative) by frojack on Friday February 28 2014, @06:59PM

    by frojack (1554) on Friday February 28 2014, @06:59PM (#8693) Journal

    I don't see any way around this issue other than to challenge her right to consent.

    Assuming, as a resident, she had the right to consent, I see no reason to insist that EVERY resident consent. Such a condition would be unworkable, and hands too much control to the criminal element. It would force innocent parties to participate in the continued crime (the robberies) or consent to continued abuse, or move out of a home that is at least nominally their own. Your Ne'er-do-well son could start cooking drugs out of your house and you couldn't even show the police the lab in his bedroom?

    No, there needs to be balance, and if the scale tips it should tip in the favor of the innocent.

    Betteridge would look at the question in the summary:

    Could this lead to police arresting people objecting to searches to remove the need for warrants?"

    and come to the conclusion that NO, in the long run, asking for permission to search, and hauling away anyone who says NO is not going to fly. Its easier to sit on the house and wait for the warrant.

    --
    No, you are mistaken. I've always had this sig.
    • (Score: 4, Insightful) by Angry Jesus on Friday February 28 2014, @07:24PM

      by Angry Jesus (182) on Friday February 28 2014, @07:24PM (#8707)

      No, there needs to be balance, and if the scale tips it should tip in the favor of the innocent.

      That's a statement that only has meaning in context. In this case the innocent person was bettered by the outcome (presumably). But as a general principle that attitude is a recipe for authoritarianism, on the level of "if you aren't hiding anything you have nothing to fear."

      Your Ne'er-do-well son could start cooking drugs out of your house and you couldn't even show the police the lab in his bedroom?

      Seems like if the son explicitly told the cops they could not enter then a warrant would suit that situation just fine.

      Its easier to sit on the house and wait for the warrant.

      For a legitimate search that is absolutely true. So why do the police need this privilege?

      • (Score: 4, Informative) by frojack on Friday February 28 2014, @08:03PM

        by frojack (1554) on Friday February 28 2014, @08:03PM (#8730) Journal

        The constitution only offers protection against unreasonable search and seizure.
        This isn't an absolute right, and it never has been.

        Once someone gives permission, its no longer unreasonable.

        If all occupants agree that they do NOT consent a search, they would prevail. (Contrary to the question asked in the summary, refusing a search is not grounds for arrest).

        If all occupants refuse, and the Police still think they have enough to apply for a warrant, they can do so. But their burden is greater as it should be.

        --
        No, you are mistaken. I've always had this sig.
        • (Score: 3, Insightful) by Angry Jesus on Friday February 28 2014, @08:21PM

          by Angry Jesus (182) on Friday February 28 2014, @08:21PM (#8742)

          Once someone gives permission, its no longer unreasonable.

          Once someone denies permission, it is unreasonable.

          See how that works? Anyone can make a blanket subjective statement.

          It all comes down to the definition of "unreasonable" -- and part of that definition includes whether or not there is another way to get the same end result in legitimate situations with less opportunity for abuse in illegitimate situations.

          • (Score: 2, Troll) by frojack on Friday February 28 2014, @08:51PM

            by frojack (1554) on Friday February 28 2014, @08:51PM (#8764) Journal

            It all comes down to the definition of "unreasonable" -- and part of that definition includes whether or not there is another way to get the same end result

            No, the legal definition of unreasonable search does emphatically NOT include finding some other way, and exhausting all other means. It has never meant this. You don't get to make that determination, its above your pay grade.

            http://legal-dictionary.thefreedictionary.com/unre asonable+search+and+seizure [thefreedictionary.com]

            --
            No, you are mistaken. I've always had this sig.
            • (Score: 1, Troll) by Angry Jesus on Friday February 28 2014, @09:44PM

              by Angry Jesus (182) on Friday February 28 2014, @09:44PM (#8811)

              You don't get to make that determination, its above your pay grade.

              Alrighty then! Since you've decided that some random freedictionary.com is qualified to make that determination, let's go with that.

              search by a law enforcement officer without a search warrant and without "probable cause"

              In this case there was no search warrant and no one demonstrated probable cause. So, you've just put the argument to bed.

              • (Score: 2, Troll) by frojack on Friday February 28 2014, @09:56PM

                by frojack (1554) on Friday February 28 2014, @09:56PM (#8821) Journal

                Again, you misunderstand.
                Once someone gives permission, probable cause is of no consequence.

                Probable cause is only involved in the case where no permission is needed, (such as being pulled over for drunk driving or something).

                As for the dictionary, what did you expect, a supreme court citation?
                Why would I expect you to accept that, when we are discussing a supreme court ruling, and you won't accept it.

                You are not a law unto yourself. You live in a society and that society as a whole makes the rules. How could any society possibly exist any other way.

                You too can aspire to sit on the Supreme Court, and right all the wrongs of the world.

                --
                No, you are mistaken. I've always had this sig.
                • (Score: 1, Troll) by Angry Jesus on Friday February 28 2014, @10:02PM

                  by Angry Jesus (182) on Friday February 28 2014, @10:02PM (#8830)

                  Again, you misunderstand.
                  Once someone gives permission, probable cause is of no consequence.

                  Oh, I understand completely. Your argument is a nice little circle. It should be OK if someone gives permission because once someone gives permission it is OK. Perfect internal consistency!

                  we are discussing a supreme court ruling, and you won't accept it.

                  Indeed, the SCOTUS is above criticism. I don't know what I was thinking.

        • (Score: 5, Insightful) by hemocyanin on Friday February 28 2014, @08:28PM

          by hemocyanin (186) on Friday February 28 2014, @08:28PM (#8749) Journal

          Read my comment here: http://soylentnews.org/comments.pl?sid=341&cid=874 1 [soylentnews.org]

          What you need to understand is that in application, this case will become totally unhinged from its factual underpinnings, and become a general principal that allows cops to occupant shop for permission. There is a history of doing just that, specifically, the way Smith v. Maryland made sure some creeper did time, and in the ensuing decades, made sure that every innocent person in America is subject to surveillance.

          If you think about that old saw: "It is better for ten guilty men to go free than one innocent to be punished" -- this is sort of a corollary to that: "it is better for one guilty man to go free, than to establish a principal that enslaves an entire population."

          And really, everyone goes around blaming the law for letting the guilty get off. Why does nobody think to blame the lazy cops who can't be arsed to follow the law?

    • (Score: 1) by emg on Friday February 28 2014, @07:34PM

      by emg (3464) on Friday February 28 2014, @07:34PM (#8718)

      "I don't see any way around this issue other than to challenge her right to consent."

      How can she possibly consent to a search of someone else's stuff?

      If you rent out your basement, do you think the tenant should be able to consent to let the police search your house?

      • (Score: 1) by Runaway1956 on Friday February 28 2014, @07:53PM

        by Runaway1956 (2926) Subscriber Badge on Friday February 28 2014, @07:53PM (#8727) Journal

        Maybe I misunderstood something. Wasn't she his common law wife? She LIVED there. She had every right, and authority to authorize a search of her own home. What, exactly, is the difference between "live in girl friend" and "common law wife"? The difference of a year or so? They've been living together, and she had his baby - that seems good enough for me.

      • (Score: 2) by frojack on Friday February 28 2014, @08:05PM

        by frojack (1554) on Friday February 28 2014, @08:05PM (#8731) Journal

        She was cohabiting. It wasn't like she was a renter of a separate premises.

        --
        No, you are mistaken. I've always had this sig.
    • (Score: 2) by Angry Jesus on Saturday March 01 2014, @10:22PM

      by Angry Jesus (182) on Saturday March 01 2014, @10:22PM (#9262)

      I see no reason to insist that EVERY resident consent. Such a condition would be unworkable, and hands too much control to the criminal element.

      You don't get to make that decision, it is above your pay grade. You are not a law unto yourself. You live in a society and that society as a whole makes the rules. How could any society possibly exist any other way.

      You too can aspire to sit on the Supreme Court, and right all the wrongs of the world.

      In 2006, the SCOTUS ruled the following in Georgia v Randolph:

      "[W]hen people living together disagree over
      the use of their common quarters ... a resolution must come
      through voluntary accommodation, not by appeals to
      authority." 547 U. S., at 113–114.

      See also United Stats v Matlock(1974) at 114-115:

      [T]here is no common understanding that one co-tenant
      generally has a right or authority to prevail over the ex-
      press wishes of another, whether the issue is the color of
      the curtains or invitations to outsiders. ...
      [T]he cooperative occupant's invitation adds nothing to
      the government's side to counter the force of an objecting
      individual's claim to security against the government's
      intrusion into his dwelling place.

      • (Score: 2) by frojack on Sunday March 02 2014, @12:28AM

        by frojack (1554) on Sunday March 02 2014, @12:28AM (#9292) Journal

        From my (non-lawyer) reading of Matlock, it seems to be in agreement with the current case (Fernandez v. California).

        So Georgia v. Randolph was over-ruled, and the situation now is that Fernandez v. California restores what was found in Matlock.

        United Stats v Matlock
        When the prosecution seeks to justify a warrantless search by proof of voluntary consent it is not limited to proof that consent was given by the defendant, but may show that permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected.

        The entire ruling is HERE [findlaw.com]. See especially section IV Where it is clearly spelled out that only one party need consent.

        Be beyond that, I have to ask where are you going with this?

        You don't accept the current supreme court decision, so you show OLDER supreme court decisions as evidence? (And apparently miss the fact that one of those agrees with the current one).

        I'm not sure it makes sense to appeal to an older ruling which was clearly over turned by the newer one.

        --
        No, you are mistaken. I've always had this sig.
        • (Score: 2) by Angry Jesus on Sunday March 02 2014, @12:48AM

          by Angry Jesus (182) on Sunday March 02 2014, @12:48AM (#9302)

          From my (non-lawyer) reading of Matlock, it seems to be in agreement with the current case (Fernandez v. California).

          Again you misunderstand.

          You were not talking about Fernandez v California - that's a case where the person denying access was no longer present. You made a claim that even people who are present should be over-ruled by their co-tenants. Fernandez has nothing to say about that point and Matlock never asked the guy because he wasn't present.

  • (Score: 0, Flamebait) by rts008 on Friday February 28 2014, @09:22PM

    by rts008 (3001) on Friday February 28 2014, @09:22PM (#8793)

    No, she could NOT go inside to 'got the kid for them' because she answered the door with the kid in her arms!

    Stupid git....RTFA, n00b.