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(Reason Magazine)   Supreme Court rules that police can get around your refusal to allow them to search your residence by arresting you and coming back later when you aren't home   (reason.com) divider line 135
    More: Sick, Supreme Court, supreme court ruled, Alito, Elena Kagan  
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2534 clicks; posted to Politics » on 26 Feb 2014 at 9:26 AM (26 weeks ago)   |  Favorite    |   share:  Share on Twitter share via Email Share on Facebook   more»



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2014-02-26 09:27:45 AM
Nice use of the "sick" tag, subs.
 
2014-02-26 09:30:02 AM
 "Denying someone in Rojas' position the right to allow the police to enter her home would also show disrespect for her independence."

wat?
 
2014-02-26 09:31:00 AM
"Her home"? Really? She's just the freaking girlfriend you authoritarian, Nazi loving twats!
 
2014-02-26 09:32:08 AM
Good thing I always activate my booby traps whenever I leave the house.

You know, for burglars. Yeah. Burglars.
 
2014-02-26 09:32:31 AM
"The Supreme Court has ruled" is the new "the Bible says".
 
2014-02-26 09:32:49 AM
They arrested the guy, came back, and got his girlfriend's consent to search. Am I missing something? What's unreasonable or illegal about that? I figured the liberal judges would be all about this since it was a domestic violence case.
 
2014-02-26 09:32:54 AM
Is this a reversal? I'm a little confused here. I need a Fark Lawyer.
 
2014-02-26 09:33:25 AM
That this is being reported by Reason, I can safely assume that this is boilerplate poutrage from the GOP about "overreaching government" or some such paranoia.  In other words:

farm4.staticflickr.com
 
2014-02-26 09:33:27 AM
Fascists. Fascists everywhere.
 
2014-02-26 09:33:52 AM
It's a domestic violence case, the police had reason to believe a person was in danger, something that has allowed police to enter a residence without a warrant since forever.
 
2014-02-26 09:35:33 AM

verbaltoxin: They arrested the guy, came back, and got his girlfriend's consent to search. Am I missing something? What's unreasonable or illegal about that? I figured the liberal judges would be all about this since it was a domestic violence case.


Because a girlfriend was most likely not on the lease/title.
 
2014-02-26 09:35:46 AM
When you combine this ruling with all the state laws against "disorderly conduct," "disturbing the peace," etc. that are designed to allow cops to arrest anyone at any time, we've all just effectively lost our ability to refuse to consent to a search.
 
2014-02-26 09:36:18 AM

ginandbacon: Is this a reversal? I'm a little confused here. I need a Fark Lawyer.


Not really. Previous Supreme Court precedent said that if there were two people in a house, and one gave the police consent to search but the other refused consent, the police couldn't enter over the second person's objections. Now they addressed a new question, which is whether or not the police could go back to the house after the second person was no longer there and enter when there's only one person in the home saying yes, and no one there presently saying no.

I really don't have much of a problem with this, though I can see issues where the police try to manipulate the non-consenting person out of the house.
 
2014-02-26 09:36:32 AM
This is what happens when the judiciary is populated by former prosecutors, academics, and lawyers from large firms. Society thinks so little of defense attorneys, public defenders especially, that they rarely get appointed or elected. Society also complains when their rights are eroded. We're presented with caricatures of defense attorneys like Saul from Breaking Bad and we train society to think "He only defends criminals and to hell with the rights of criminals." Never realizing that our right are all the same.

/Prosecutor
 
2014-02-26 09:37:46 AM

TNel: verbaltoxin: They arrested the guy, came back, and got his girlfriend's consent to search. Am I missing something? What's unreasonable or illegal about that? I figured the liberal judges would be all about this since it was a domestic violence case.

Because a girlfriend was most likely not on the lease/title.


That doesn't make a difference regarding consent-to-search law. If you live in a house, no matter whether you're on the lease or on the title, the police can use your consent to search. The police basically have to determine whether the person giving consent is authorized to allow people to enter the house. Clearly a live-in girlfriend is authorized to let people into the house.
 
2014-02-26 09:38:45 AM

imontheinternet: When you combine this ruling with all the state laws against "disorderly conduct," "disturbing the peace," etc. that are designed to allow cops to arrest anyone at any time, we've all just effectively lost our ability to refuse to consent to a search.


Nevermind.  I misread the article.  Time for more coffee.
 
2014-02-26 09:39:06 AM

Rincewind53: I really don't have much of a problem with this, though I can see issues where the police try to manipulate the non-consenting person out of the house.


Or wait for him to go to work.
 
2014-02-26 09:39:17 AM
For those of you who aren't going to read the article:

Subby is trolling. The case in question involved two people who were home initially. One consented, one didn't. The one who didn't was being arrested for a domestic dispute. During the period of detention, the officers went back to the residence and asked the remaining resident (whose name was on the lease) to search; she consented.

The police did not search the premises without a warrant or permission. They had permission from a resident of the property.
 
2014-02-26 09:39:27 AM
I have to wonder exactly when the Justices believe Fernandez's refusal to a search expired.  Obviously it was some time after he said "I don't want you in here", and some time before the cops came back.

I guess I'd just like to know how far away you have to be from your house before you can no longer tell the police they can't enter.  Did they have to drive him all the way to central booking first?  Or could they have just put the cuffs on him, sat him in the car, and then gone back and asked Rojas if they could come in?  Or is it a time thing - is your assertion of your fourth amendment rights only good for x number of minutes?

And as for you Alito, you absolute cock: "Denying someone in Rojas' position the right to allow the police to enter her home would also show disrespect for her independence."  - do you consider the police not being able to enter when they first got there and Fernandez said 'no' to also be a denial of Rojas' position?
 
2014-02-26 09:40:55 AM

Karac: I have to wonder exactly when the Justices believe Fernandez's refusal to a search expired.  Obviously it was some time after he said "I don't want you in here", and some time before the cops came back.

I guess I'd just like to know how far away you have to be from your house before you can no longer tell the police they can't enter.  Did they have to drive him all the way to central booking first?  Or could they have just put the cuffs on him, sat him in the car, and then gone back and asked Rojas if they could come in?  Or is it a time thing - is your assertion of your fourth amendment rights only good for x number of minutes?

And as for you Alito, you absolute cock: "Denying someone in Rojas' position the right to allow the police to enter her home would also show disrespect for her independence."  - do you consider the police not being able to enter when they first got there and Fernandez said 'no' to also be a denial of Rojas' position?


I do agree with Ginsburg that this essentially reduces  Georgia v. Randolph to a tiny little smidgen of useless cases.
 
2014-02-26 09:41:19 AM
Yeah, because getting a search warrant is too burdensome for today's authoritarian goon on the go. They got dogs to shoot, crippled and deaf people to taser, bullshiat tickets to write...
 
2014-02-26 09:41:26 AM

Rincewind53: That doesn't make a difference regarding consent-to-search law. If you live in a house, no matter whether you're on the lease or on the title, the police can use your consent to search. The police basically have to determine whether the person giving consent is authorized to allow people to enter the house. Clearly a live-in girlfriend is authorized to let people into the house.


Who said she was living there?  She could have just been there.  I haven't read much into this case but just because someone is present in the home doesn't give them permission to grant entry.
 
2014-02-26 09:41:30 AM

Rincewind53: ginandbacon: Is this a reversal? I'm a little confused here. I need a Fark Lawyer.

Not really. Previous Supreme Court precedent said that if there were two people in a house, and one gave the police consent to search but the other refused consent, the police couldn't enter over the second person's objections. Now they addressed a new question, which is whether or not the police could go back to the house after the second person was no longer there and enter when there's only one person in the home saying yes, and no one there presently saying no.

I really don't have much of a problem with this, though I can see issues where the police try to manipulate the non-consenting person out of the house.


I think the bolded part is the important part.  If police were concerned about doing their jobs within the spirit of the constitution and with respect to the rule of law, then this ruling is perfectly fine.  However, cops behave like cops so you know that we're going to see some kind of workaround where their objective becomes removing anyone from the home for whatever reason and hoping to get permission to search from the "easiest" person who's legally able to permit a search.
 
2014-02-26 09:42:13 AM

WTF Indeed: It's a domestic violence case, the police had reason to believe a person was in danger, something that has allowed police to enter a residence without a warrant since forever.


If that was the case, then why couldn't they enter the first time they got there?
And when they got there the second time, who was putting the girlfriend in danger?  The boyfriend wasn't threatening her at that time and they knew that - they had just locked him up.
 
2014-02-26 09:42:52 AM

Princess Ryans Knickers: "Her home"? Really? She's just the freaking girlfriend you authoritarian, Nazi loving twats!


Is it her home?  I didn't see where she was just visiting.

/not meant as a comment on the ruling
 
2014-02-26 09:43:19 AM
"Denying someone in Fernandez' position the right to allow the police to enter HIS home would also show disrespect for his independence. "

Buggerin' Alito
 
2014-02-26 09:45:03 AM

eldritch2k4: During the period of detention, the officers went back to the residence and asked the remaining resident (whose name was on the lease) to search; she consented.


And that's just the problem: one of the residents had refused to consent to the search.  That refusal should remain in effect until that person either withdraws it or until the cops get a warrant.  They shouldn't be allowed to search your place over your objections by just waiting until you leave, or arresting you and making sure you left.
 
2014-02-26 09:45:03 AM

eldritch2k4: For those of you who aren't going to read the article:

Subby is trolling. The case in question involved two people who were home initially. One consented, one didn't. The one who didn't was being arrested for a domestic dispute. During the period of detention, the officers went back to the residence and asked the remaining resident (whose name was on the lease) to search; she consented.

The police did not search the premises without a warrant or permission. They had permission from a resident of the property.


Whether or not she's an actual resident would have come up at trial. It's not really the point, though. The point is that when you keep allowing these exceptions, eventually you strip all power away from the protection afforded by the right. As stated above, the police can arrest you for all kinds of crimes that you don't know you're committing. Spitting on the sidewalk can get a Disorderly Conduct arrest. Stepping back from a police officer can get you a resisting or even a fleeing. Moving furtively can grant an officer permission to search you. Flex your arms while you're being cuffed? That'll be written up as resisting. The point that Kagan, Ginsburg, and Sotomayor were making was about narrowing of established precedent and erosion of what is considered a basic constitutional right.
 
2014-02-26 09:46:02 AM

Rincewind53: I really don't have much of a problem with this, though I can see issues where the police try to manipulate the non-consenting person out of the house.


That's essentially my feeling as well. I'd want clarification on who is allowed to represent the household. If the police try a warrantless search of someones home and they don't consent, so they come back the following day when their 18 year old son is home alone and bluster him into giving consent, is that reasonable?

While the surficial ruling may not be horrififcally incorrect, there's definitely a lot more epxloitable gray area on the table now.
 
2014-02-26 09:46:22 AM

They arrested the guy, came back, and got his girlfriend's consent to search. Am I missing something? What's unreasonable or illegal about that? I figured the liberal judges would be all about this since it was a domestic violence case.


If they had time to arrest him, why couldn't they find time to have her make a statement ("I've been beaten by him") to get a judge to sign a warrant?

Whose name is on the lease? If it was a rented apartment, why not ask the landlord? The landlord legally owns the property.

Will this ruling allow any guest to give the police to enter into a home?
 
2014-02-26 09:47:00 AM

TNel: Who said she was living there?  She could have just been there.  I haven't read much into this case but just because someone is present in the home doesn't give them permission to grant entry.


TFA doesn't say it, but that is the case, I assure you. She lived there, the police knew that, and no one is denying it.

Mercutio74: think the bolded part is the important part.  If police were concerned about doing their jobs within the spirit of the constitution and with respect to the rule of law, then this ruling is perfectly fine.  However, cops behave like cops so you know that we're going to see some kind of workaround where their objective becomes removing anyone from the home for whatever reason and hoping to get permission to search from the "easiest" person who's legally able to permit a search.


I agree. I'm actually stepping back a little on my previous thoughts, considering how this could eat away at the prior precedent.
 
2014-02-26 09:48:15 AM

verbaltoxin: I figured the liberal judges would be all about this since it was a domestic violence case.


And I figured some of the (purportedly) libertarian-leaning justices (Kennedy? Alito??) would have been against it, because it broadens state power so much more.
 
2014-02-26 09:48:52 AM

waltpeter: Whose name is on the lease? If it was a rented apartment, why not ask the landlord? The landlord legally owns the property.


Landlords cannot legally give consent to have the police search your apartment, except in some extreme circumstances. They legally own the property, but the whole point of a lease is that the landowner has signed away most of his legal rights to the property and given it to the tenant, including the right to come in without warning.
 
2014-02-26 09:49:03 AM

Rincewind53: TFA doesn't say it, but that is the case, I assure you. She lived there, the police knew that, and no one is denying it.


Yeah after some digging she was living there.  Still sucks though.  I'm on the fence on this since it does open a can of worms when you could just wait till one person leaves then stroll right over and gain entry.
 
2014-02-26 09:49:32 AM

eldritch2k4: For those of you who aren't going to read the article:

Subby is trolling. The case in question involved two people who were home initially. One consented, one didn't. The one who didn't was being arrested for a domestic dispute. During the period of detention, the officers went back to the residence and asked the remaining resident (whose name was on the lease) to search; she consented.

The police did not search the premises without a warrant or permission. They had permission from a resident of the property.


If I recall correctly, in this case the police believed that the man at the apartment was involved in a robbery. When they knocked, they heard shouting, and his girlfriend, who looked like she had been crying, answered, and told police they could enter. The guy they suspected of comitting the robbery came out a minute later and told them they did not have his consent and would have to leave, so they arrested him on suspicion of domestic violence due to the argument and maintained that since he was removed from the dwelling, his girlfriend's consent was all they needed.

Of course while searching the apartment they found clothing that matched what the robber was wearing and some unregisterd guns...
 
2014-02-26 09:50:20 AM
The three female justices voted against this erosion of the 4th Amendment, even though it was tied to a domestic abuse case. The authoritarians lined up to take it down as usual.
 
2014-02-26 09:50:29 AM
Here's an interesting tidbit from SCOTUSblog:

When the police returned an hour later, Rojas gave consent for the police to search the apartment, and the trial court later found that consent to be voluntary.  (Justice Ginsburg's dissent says that there is "cause to doubt" the voluntary nature of her consent, and the facts are somewhat unsavory, with Rojas claiming the officers threatened to take her children.)
 
2014-02-26 09:51:17 AM

waltpeter: Whose name is on the lease? If it was a rented apartment, why not ask the landlord? The landlord legally owns the property.


Doesn't matter. She was living there, she could give consent. Doesn't matter whose name was on the lease. This is well established precedent.


Will this ruling allow any guest to give the police to enter into a home?

Pretty sure that's also well-established precedent. Anyone who has a legal right to be in the house with the owner's permission has the ability to consent to a search of the premises.
 
2014-02-26 09:53:10 AM

Kuta: The three female justices voted against this erosion of the 4th Amendment, even though it was tied to a domestic abuse case. The authoritarians lined up to take it down as usual.


Actually, you couldn't be more wrong. The staunchest defenders against police power regarding the 4th Amendment tend to be Scalia and Thomas, because they take an originalist view on government power. Usually it's the liberals who believe in allowing the police (read: the state) leeway to conduct investigations.
 
2014-02-26 09:53:22 AM
Would the evidence found for the robbery be considered admissable if the original arrest was for domestic abuse?

That just seems awfully...unlawful?  I don't know, I'm neither a lawyer or a police officer, but it would leave anyone open to being arrested and having their homes searched for any possible thing.  It's a terrible precedent.    It just feels sneaky.
 
2014-02-26 09:54:09 AM
Well, so long as they keep the mandatory shooting of the family dog legal, we should have no more problems with those terrorists.
 
2014-02-26 09:54:10 AM

Relatively Obscure: Here's an interesting tidbit from SCOTUSblog:

When the police returned an hour later, Rojas gave consent for the police to search the apartment, and the trial court later found that consent to be voluntary.  (Justice Ginsburg's dissent says that there is "cause to doubt" the voluntary nature of her consent, and the facts are somewhat unsavory, with Rojas claiming the officers threatened to take her children.)


Wow...  one of the greatest dangers to US citizens seems to be ignorance of their rights.
 
2014-02-26 09:56:06 AM

Rincewind53: Kuta: The three female justices voted against this erosion of the 4th Amendment, even though it was tied to a domestic abuse case. The authoritarians lined up to take it down as usual.

Actually, you couldn't be more wrong. The staunchest defenders against police power regarding the 4th Amendment tend to be Scalia and Thomas, because they take an originalist view on government power. Usually it's the liberals who believe in allowing the police (read: the state) leeway to conduct investigations.


That's what I found surprising, too. When I thought more about Scalia's vote, I assume he voted for it because it is actually a logical extension. If she's a resident, she can give consent once he's no longer there. Makes perfect sense.
 
2014-02-26 09:56:23 AM
So if police knock on my door politely, do I have to open the door?

I understand if they are pounding on the door, screaming "this is the police!", a different reaction may be required.
 
2014-02-26 09:57:28 AM
And I got the facts of the case wrong, as well. For a detailed analysis of the case by someone who is better versed in case law, please see: http://www.scotusblog.com/2014/02/opinion-analysis-the-court-narrowly - limits-a-precedent-allowing-co-occupant-objections-to-warrantless-cons ent-searches/
I do apologize for my misinformation.
 
2014-02-26 09:57:54 AM

Literally Addicted: Would the evidence found for the robbery be considered admissable if the original arrest was for domestic abuse?

That just seems awfully...unlawful?  I don't know, I'm neither a lawyer or a police officer, but it would leave anyone open to being arrested and having their homes searched for any possible thing.  It's a terrible precedent.    It just feels sneaky.


Broadly speaking, yes. The "plain view" doctrine says the police don't have to ignore evidence of criminal activity if it's in plain view. So, for example, if the police have a warrant to search your home for evidence of a murder, and happen to find a working meth lab in your basement, they can still arrest you for that. They don't have to say "Oh, damn, we were only looking for the murder weapon, I guess you can keep your meth lab."

The facts in this particular case are also different than the scenario you proposed. They were looking for evidence of a robbery, went to a guy's house, and heard screaming and a fight. When they knocked on the door, the girlfriend was crying. She agreed to let them in, and then about a minute later, the guy refused to allow them to enter. They then arrested him on suspicion of domestic violence. Then the police came back and asked the girlfriend a second time if they could come in, and she allowed them in. This second search was not related at all to the arrest for domestic abuse.
 
2014-02-26 09:59:13 AM

Rincewind53: ginandbacon: Is this a reversal? I'm a little confused here. I need a Fark Lawyer.

Not really. Previous Supreme Court precedent said that if there were two people in a house, and one gave the police consent to search but the other refused consent, the police couldn't enter over the second person's objections. Now they addressed a new question, which is whether or not the police could go back to the house after the second person was no longer there and enter when there's only one person in the home saying yes, and no one there presently saying no.

I really don't have much of a problem with this, though I can see issues where the police try to manipulate the non-consenting person out of the house.


Thank you :) I always look forward to your posts.
 
2014-02-26 09:59:38 AM

TheShavingofOccam123: So if police knock on my door politely, do I have to open the door?

I understand if they are pounding on the door, screaming "this is the police!", a different reaction may be required.


Unless they have a warrant, no. In that situation, they're no different than a Jehovah's Witness knocking on your door.

Of course, if they know you're home and refusing to talk to them, they may then go  get a warrant.
 
2014-02-26 10:00:09 AM
I see the possible negative implications but still have my doubts about this. So now police has to get the consent of every adult in a household before performing a search? So if a criminal gang lives in a house and only one or two of them are present they have to wait until all they are at home and then get permission from all of them before proceeding?
 
2014-02-26 10:01:14 AM
If at first you don't succeed, arrest someone, try again, arrest someone, try again, arrest someone, try again, arrest someone, try again, arrest someone, try again, arrest someone, try again,   arrest someone, try again, arrest someone, try again, arrest someone, try again,   arrest someone, try again, arrest someone, try again, arrest someone, try again,   arrest someone, try again, arrest someone, try again, arrest someone, try again,   arrest someone, try again, arrest someone, try again, arrest someone, try again,   arrest someone, try again, arrest someone, try again, arrest someone, try again...
 
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