DO YOU AGREE WITH TODAY"S USSC DECISION? Or are you pissed off and a bit scared as to what happened today?
http://www.supremecourt.gov/Search.aspx … 2-7822.htm
Fernandez v. California, U.S. Supreme Court, 12-7822.
The warrant requirement, Justice Jackson observed, ranks among the fundamental distinctions between our form of government, where officers are under the law, and the police state where they are the law.
Instead of adhering to the warrant requirement, today’s decision tells the police they may dodge it, nevermind ample time to secure the approval of a neutral magistrate.
After Walter Fernandez, while physically present at his home, rebuffed the officers’ request to come in, the police removed him from the premises and then arrested him, albeit with cause to believe he had assaulted his cohabitant, Roxanne Rojas.
Moreover, with the objector in custody,there was scant danger to persons on the premises, or risk that evidence might be destroyed or concealed, pending request for, and receipt of, a warrant. Rojas said nothing to contradict Fernandez’ refusal. About an hour later, however, and with no attempt to obtain a search warrant, the police returned to the apartment and prevailed upon Rojas to sign a consent form authorizing search of the premises.
There is no common understanding that one co-tenant generally has a right or authority to prevail over the express wishes of another, whether the issue is the color of the curtains or invitations to outsiders.
Only in a Hobbesian world, however, “would one person’s social obligations to another be limited to what the other[,because of his presence,] is . . . able to enforce.”
FreeDictionary: Hobbes, Thomas 1588-1679. English philosopher and political theorist best known for his book Leviathan (1651), in which he argues that the only way to secure civil society is through universal submission to the absolute authority of a sovereign.
Even if shared tenancy were understood to entail the prospect of visits by unwanted social callers while the objecting resident was gone, that unwelcome visitor’s license would hardly include free rein to rummage through the dwelling
Indeed, as the Court acknowledges to require continuous physical presence poses administrative difficulties of its own. Does an occupant’s refusal to consent lose force as soon as she absents herself from the doorstep, even if only for a moment? Are the police free to enter the instant after the objector leaves the door to retire for a nap, answer the phone, use the bathroom, or speak to another officer outside?
Hypothesized practical considerations, in short, provide no cause for today’s drastic reduction of Randolph’s holding and attendant disregard for the warrant requirement.
In this case, the police could readily have obtained a warrant to search the shared residence.
Although the police have probable cause and could obtain a warrant with dispatch, if they 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.
Although the validity of Rojas’ consent is not before us, the record offers cause to doubt that her agreement to the search was, in fact, an unpressured exercise of self-determination. At the evidentiary hearing on Fernandez’ motion to suppress, Rojas testified that the police, upon returning to the residence about an hour after Fernandez’ arrest, began questioning her four-year-old son with out her permission. Rojas asked to remain present during that questioning, but the police officer told her that their investigation was “going to determine whether or not we take your kids from you right now or not.”
(“I felt like [the police] were going to take my kids away from me.”). Rojas thus maintained that she felt “pressured” into giving consent. (“I felt like I had no rights.”). After about 20 or 30 minutes, Rojas acceded to the officer’s request that she sign a consent form. Rojas testified that she “didn’t want to sign [the form],” but did so because she “just wanted it to just end.”
1/29/2013: Supreme Court Justice Antonin Scalia is still frustrated that Americans don't understand how to read the supreme law of the land. “It’s not a living document," he said, according to the Dallas Morning News."It’s dead, dead, dead."
I have a hard time being upset that the police don't need a community vote to enter an apartment. I have a hard time excusing someone who signs a contract, consent form or anything because "I just wanted it to end". If Rojas doesn't want the cops in her home, walk inside and close the door.
Taking the kid is a totally different problem; I assume from the limited information that CPS was on site. I very much dislike the actions of that division of society, but have nothing better to offer, either.
Rojas is/was certainly stupid and the cops took advantage of that. I am deeply disappointed that another long standing protection has been chipped away. Soon will have nothing left whatsoever.
Unfortunately for the pretty pictures, they all go out the window when Rojas gives permission. At that point it is not unreasonable to enter, and without a warrant, which is what happened.
Not that I don't think that our rights are being eroded; they most definitely are. But rights must be protected, and Rojas failed in that very basic duty and instead actively gave them away. She thus has no complaint whatsoever.
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