Thursday, February 27, 2014

Liberty Receives Another Blow from SCOTUS

In the new Fernandez v. California, SCOTUS ruled, by 6-3, that if a present cotenant refuses consent to enter the residence [which controls against contrary wishes of another cotenant], if the cops can figure a way to get the refusing person away, then his refusal evaporates for 4th Amendment purposes!  Huh?  Does his duty to make mortgage payments cease if he is taken away?  Then how does his other authority over his residence cease?

Here, after he refused them warrantless entry, the cops "removed" the refuser from his home, and then they had only the meek, mild cotenant to deal with, and she gave in and let them search.  Wow!  I wonder how much these so-called originalists study about the Framers' intents about government invasions of residences when they come up with this police power cockamamie garbage.

A nagging pivotal point needs addressing: "He does not contest the fact that the police had reasonable grounds for removing him from the apartment so that they could speak with Rojas, an apparent victim of domestic violence, outside of petitioner’s potentially intimidating presence. In fact, he does not even contest the existence of probable cause to place him under arrest. We therefore hold that an occupant who is absent due to a lawful detention or arrest stands in the same shoes as an occupant who is absent for any other reason."

This is where his criminal lawyer failed him - he should have contested the warrantless removal from the residence, because there is no DV exception to the warrant clause for residential searches/arrests!  Reaching in and dragging a person out of his residence or commanding him to leave the residence is tantamount to a Payton search and requires a warrant!

Attorneys should NOT forget to object to any warrantless incursions/extractions in this sort of situation.

I love Alito's comment that they won't "extend" Randolph to this situation! Uh, Liberty is not granted [nor extended] by SCOTUS - it inheres in us as a people and is the default position in this Republic, Mr. So-Called "Originalist."

A book that comes to mind here is I. Müller, Hitler’s Justice: The Courts of the Third Reich (D. Schneider trans. 1991 Harvard University Press).  I recommend all who think we have a court that protects us from a rampaging executive to read that - we are living in shades of '30's Germany, yet none dare voice it.  Then read R. Balko, Rise of the Warrior Cop: the Militarization of America's Police Forces (2014), and all will become clear.  Too clear for comfort.

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