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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: 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?

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  • (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?