SCOTUS Limits Warrantless Searches

Ken AshfordConstitution, Crime, Supreme Court, Wiretapping & SurveillanceLeave a Comment

One thing that struck me in law school, and to this day, is how often the U.S. Supreme Court visits the issues of searches under the Fourth Amendment.

Seriously.  Every year they take a couple of these cases, it seems.  I don’t even pay attention any more.

But this morning, the Court addressed an interesting issue: consent searches.  Consent searches fall into that category of warrantless searches by law enforcement.  They are constitutionally permissible because the target of the search consents to it, thereby waiving his Fourth Amendment protections.

At issue in today’s case was who can give consent.  Or, to be accurate, whether a spouse can effectively waive 4th Amendment protections for another spouse.

The current law in most states, and on the national level, was that as long as one person gives consent, the police can search without a warrant.  For example, if the wife lets the police come in and look around, the husband cannot do anything.

Well, no more.

The Supreme Court narrowed police search powers yesterday, ruling that officers must have a warrant to look for evidence in a couple’s home unless both of the partners present agree to let them in.

The 5-to-3 decision sparked a sharp exchange among the justices. The majority portrayed the decision as striking a blow for privacy rights and gender equality; dissenters said it could undermine police efforts against domestic violence, the victims of which are often women.

The ruling upholds a 2004 decision of the Georgia Supreme Court, but still makes a significant change in the law nationwide, because most other lower federal and state courts had said police could search with the consent of one of two adults living together.

I think this makes sense.

In the majority opinion, Justice David H. Souter said the consent of one partner is inadequate because of ”widely shared social expectations" that adults living together each have veto power over who can enter their shared living space. That makes a warrantless search based on only one partner’s consent ”unreasonable" and, therefore, unconstitutional.

”(T)here 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," Souter wrote.

Roberts wrote the dissent.

Just by agreeing to live with someone else, a co-tenant surrenders a good deal of the privacy that the Constitution’s Fourth Amendment was designed to protect, Roberts said. ”The majority’s rule apparently forbids police from entering to assist with a domestic dispute if the abuser whose behavior prompted the request for police assistance objects," he wrote.

But Souter was all like "Nuh-uh, bitch.  Back off."

But Souter called that argument a ”red herring," saying that police would still have legal authority to enter homes where one partner was truly in danger.

”[T]his case has no bearing on the capacity of the police to protect domestic victims," Souter wrote. ”No question has been raised, or reasonably could be, about the authority of the police to enter a dwelling to protect a resident from domestic violence; so long as they have good reason to believe such a threat exists. . . ."

Souter said Roberts was guilty of declaring that ”the centuries of special protection for the privacy of the home are over."

Joining Roberts dissent were Justices Scalia and Thomas.  Alito took no part in the decision, since he was appointed to the bench when arguments were made.

I guess the elephant in the room is the whole NSA wiretapping/right to privacy issue.  I’m not sure how much can be extrapolated from this decision to the larger controversy, except to say that the majority of the court still respects the right of privacy, going so far as to roll back current law enforcement practices to preserve it.  That’s encouraging.

Bush Bites

Ken AshfordBush & Co., IraqLeave a Comment

(1) Tuesday, Bush said this:

Mr. Zarqawi and al Qaeda, the very same people that attacked the United States, have made it clear that they want to drive us out of Iraq so they can plan, plot, and attack America again.

This is just one of the many many things that Bush says that just floats across the screen into our living rooms, and a significant portion of the population hears it and nods in agreement.

But it’s total B.S.

First of all, "Mr. Zarqawi" was not one of the "people that attacked the United States".  He simply wasn’t.

Second of all, the notion that our presence in Iraq is somehow preventing plans to attack America here at home is silly.  Worse than that, it’s a dangerous mindset, because it assumes — with absolutely no basis in logic or fact — that al Qaeda is incapable of doing two things at once.   Does anyone in their right mind think that the long tentacles of al Qaeda can’t do both things — fight us in Iraq and plot an attack on the U.S. mainland — at the same time?

After all, the war in Iraq didn’t stop AQ from taking neraly 200 lives in Spain two years ago, right?

(2)  Yesterday, Bush said:

We’re making good progress, we really are, in parts of the world. Afghanistan has now got a constitution which talks about freedom of religion and talks about women’s rights.

Really?  Freedom of religion in Afghanistan?  A man named Abdul Rahman has been put on trial for converting to Christianity. For this "crime", he could be put to death.

Not surprising . . . or new.  Back in 2003, the United States Commission on International Religious Freedom wrote that Afghanistan’s constitution:

  • subordinates to ordinary legislation most basic individual rights, including rights to life and the freedoms of expression and association. The rights provisions are thus non-binding aspirations that may be displaced by ordinary enactments of legislative bodies.

  • mandates that all legislation must conform to the religion of Islam, enshrining the supremacy of Islamic law even over the individual rights provisions in the constitution.

  • fails to include a specific guarantee for individual rights to freedom of thought, conscience and religion, as set forth in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, to both of which Afghanistan is party.

  • threatens to create a judicial theocracy where judges who are unrestrained by checks and balances of other branches of government, have the ultimate authority to determine the conformity of enacted laws with Islam and must apply specific schools of Islamic jurisprudence when no provision of law addresses an issue before them. This would allow for a religious orthodoxy to be officially imposed, stifling dissent within the Islamic tradition.

  • What planet is Bush living on?

    Short Takes From The Right

    Ken AshfordRight Wing Punditry/IdiocyLeave a Comment

    Shorter Leon Wolf: Even though pro-lifers would never support killing children with handicaps, they should be supporting it, which is why they’re such evil people.

    Shorter Hindrocket: Dick Cheney is no Clay Aiken.  Just thought you should know.

    Shorter Hindrocket:  Soldiers on active duty have always died from suicide, accidents, and so on.  So what’s the big deal if they die in Iraq?

    Shorter Michelle Malkin: Look at me.  Look at me looking at them.  Aren’t we conservatives great?

    And the best one:

    Shorter Marie Jon:  I recently had a dream that Hillary Clinton became President.  As a result, there was a "new surge of growth and prosperity",  …"only peace and tranquility filled the day", …"crime had disappeared", and "sickness was a thing of the past".  It was a nightmare.

    Idol Update

    Ken AshfordRandom MusingsLeave a Comment

    BuckyWell, a bad salad (I’m guessing) got be bedridden, so I missed American Idol last night, but (as the 21st century phrase goes), I TIVOed it.

    A quick zip through the recording. FRzzzzzbrzzzzzzppp!

    Looks like it’s Bucky’s night to go.  He’s just not bringing it.  Even the A-gamers were a little off last night, and Bucky just didn’t rise to their level even then.

    So I think he’s history.  Unfortunately, that means I have to endure that smamry little Chicken Little puke for another week.  Ugh.

    KevinUPDATE:  Well, Bucky had the second lowest votes, and Kevin "Chicken Little" Covais was booted.

    There is a God.

    No, I mean, he’s a nice kid, but  . . . you know . . . American Idol?

    For my money, we can get rid of Ace and Bucky in the next couple of weeks.  Then we have a real competition.

    Red America Dawns

    Ken AshfordRight Wing and Inept MediaLeave a Comment

    Responding to criticisms from the right about "liberal bias", the Washington Post has given a blog to a bigtime conservative named Ben Demonech.

    This, of course, is a huge mistake.  When conservatives complain about "liberal bias" in the mainstream media, they are not begging for "balance".  Rather, they’re trying to bully and intimidate mainstream reporters into adopting — hook, line, and sinker — the GOP spin (regardless of whether it is factual or not). 

    Frankly, conservative media dominates AM radio.  An entire cable news network has an open conservative slant.  And even shows which claim to have objective balance?  They overwhelming book conservative pundits more so than liberal or mainstream one.  But that doesn’t stop the mainstream media from running like babies for the bogus "liberal bias" label.

    So to avoid the "liberal bias" label, CNN hires Glenn Beck and Bob Bennett.  MSNBC ditches Phil Donahue and hires Michael Savage.

    And now WaPo, who already has columnists George Will and Charles Krauthammer, adds another conservative to its ranks: Ben Demonech.  Who is Demonech?  From his WaPo bio:

    After 9/11, he abandoned the journalism field for a taxpayer-funded life and was sworn in as the youngest political appointee of President George W. Bush. Following a year as a speechwriter for HHS Secretary Tommy Thompson and two as the chief speechwriter for Texas Senator John Cornyn, Ben is now a book editor for Regnery Publishing, where he has edited multiple bestsellers and books by Michelle Malkin, Ramesh Ponnuru, and Hugh Hewitt.

    Oh, great.  Well, let’s take a gander at his first blog post at "Red America" for WaPo, and see how long he can go before the lies and deceptions start:

    This is a blog for the majority of Americans.

    Shit, that didn’t take long.

    Since the election of 1992, the extreme political left has fought a losing battle. Their views on the economy, marriage, abortion, guns, the death penalty, health care, welfare, taxes, and a dozen other major domestic policy issues have been exposed as unpopular, unmarketable and unquestioned losers at the ballot box.

    Bob, the problem with seeing an election result as a refereundum on ALL those domestic issues is this: when Democrats win, it means that you will have to concede that Republicans are on the wrong side of all those issues.  Are you ready for that?

    Oh, and Bob.  Take a gander at a poll every once in a while.  The liberal/Democratic position on ALL those issues, as well as Iraq, constitutes the plurality, if not the majority, of Americans.

    Bush: Troops To Stay In Iraq Throughout His Presidency

    Ken AshfordIraq1 Comment

    Today’s press conference:

    REPORTER: Will there come a day, and I’m not asking you when — I’m not asking for a timetable — will there come a day when there will be no more American forces in Iraq?

    BUSH: That, of course, is an objective, and that will be decided by future presidents and future governments of Iraq.

    Looks like 2008 is going to be a referendum on Iraq.  That sound you hear is the sound of hundreds of GOP Congressmen slapping their foreheads all at the same time.

    What Connected Dots Look Like

    Ken AshfordWar on Terrorism/TortureLeave a Comment

    Via Think Progress:

    Former FBI Director Louis Freeh, My FBI, pg. 289:

    But in theory – and I stress theory – if we had been able to do that, and if we had connected that information with the arrest the next month in Minnesota of Zacarias Moussaoui, the French-Moroccan who aroused a flight instructor’s suspicions when he asked to learn how to fly a commercial airliner, and then tied that to the two al Qaeda cell members living in San Diego and to the earlier warnings that terrorists were plotting to use commercial flights as kamikaze planes…then perhaps 9/11 never would have happened, or would have happened at a lesser scale.

    Washington Post, 3/21/06:

    An FBI agent who interrogated Zacarias Moussaoui before Sept. 11, 2001, warned his supervisors more than 70 times that Moussaoui was a terrorist and spelled out his suspicions that the al-Qaeda operative was plotting to hijack an airplane, according to federal court testimony yesterday.

    Good News From Iraq Is Just Hope and Hooey

    Ken AshfordIraqLeave a Comment

    Yesterday, and again today, Bush says there is a lot of good news from Iraq that doesn’t get reported.

    He cites, as his Exhibit A, the success story of city of Tall Afar.

    The problem is, it’s B.S.:

    A Washington Post employee interviewing residents of Tall Afar found continuing anxiety in the streets. "Al-Qaeda has started to come back again," said Jaafar al-Khawat, 33, a tailor. "They have started to kill Shiites and Sunnis who cooperate with the Americans. Last Wednesday, they killed a truck driver because he worked with the Americans."

    Yasir al-Efri, 23, a law student at Mosul University, said al-Qaeda pamphlets began appearing on the biggest mosque in Tall Afar in the past two months claiming credit for attacks. "The Tall Afar mission failed," he said. "The city will turn back to how it was before the battle within two months. The Americans are busy putting cement barriers and barbed wire around their bases and no one is taking care of the infrastructure."

    Sebti, the mechanic, was more fearful of sectarian conflict. "People now are afraid to send their kids to school," he said. "I have to take my son to and from the school every day. There are two gangs in Tall Afar now that specialize in kidnapping children. Police can do nothing against that."

    Steve Soto says it nicely:

    This is Bush’s idea of a success story: claim credit for some short-lived security, abandon reconstruction efforts, and pull your forces back to your safe permanent bases while Al Qaeda returns to haunt the towns, an Al Qaeda that wasn’t there until Bush and Rummy let them into Iraq.

    Game Set Match

    Ken AshfordRepublicans1 Comment

    The Corner’s John Derbyshire on the "Whiny Babies Grow Up To Be Conservatives" Study:

    From the report on that study: "Remember the whiny, insecure kid in nursery school, the one who always thought everyone was out to get him, and was always running to the teacher with complaints? Chances are he grew up to be a conservative. At least, he did if he was one of 95 kids from the Berkeley area that social scientists have been tracking for the last 20 years. The confident, resilient, self-reliant kids mostly grew up to be liberals."

    Doesn’t EVERYBODY from the Berkeley area grow up to be liberal? I must say, though, they have me dead to rights. I was indeed whiny and insecure in the nursery-school years. But then, I grew up to be a liberal, and only changed teams after age 30. So this study proves… what most of these bogus "studies" prove: diddly-squat.

    Nobody ever said it was a direct progression from whiny insecure baby to whiny blowhard conservative.

    But thanks for proving the point.

    UPDATE:  The Corner’s Jonah Goldberg adds his two cents:

    Here’s a question: since the single best predictor of political orientation is the orientation of your parents, how many parents of this sample were liberal? My guess is — as Derb notes — is most of them. Perhaps the conservative kids have conservative parents and the whining is a red herring?

    Who SAYS the single best predictor of a child’s political orientation is the orientation of your parents?  If anything, children grow up to have the OPPOSITE political orientation of their parents (call it the "Alex Keaton Effect", if you will).  Although in truth, I don’t think one can generalilze one way or the other; hence, it is not the "single best predictor".

    Deja Vu

    Ken AshfordIranLeave a Comment

    LA Times:

    U.S. intelligence officials, already focused on Iran’s potential for building nuclear weapons, are struggling to solve a more immediate mystery: the murky relationship between the new Tehran leadership and the contingent of Al Qaeda leaders residing in the country.

    Some officials, citing evidence from highly classified satellite feeds and electronic eavesdropping, believe the Iranian regime is playing host to much of Al Qaeda’s remaining brain trust and allowing the senior operatives freedom to communicate and help plan the terrorist network’s operations.

    And they suggest that new President Mahmoud Ahmadinejad may be forging an alliance with Al Qaeda operatives as a way to expand Iran’s influence or, at a minimum, that he is looking the other way as Al Qaeda leaders in his country collaborate with their counterparts elsewhere.

    Change the "n" in Iran to a "q", and this sounds remarkably familiar, oui?

    Kevin Drum says only a moron would fall for the same thing twice and demands something called e-v-i-d-e-n-c-e.

    Reasons I Stand by My Decision to Pick Seton Hall to Make the Final Four of the NCAA Men’s Basketball Tournament Despite Their 20-Point Loss to Wichita State in the First Round

    Ken AshfordRandom MusingsLeave a Comment

    I must stay the course.

    I made decisions based on poor intelligence.

    I had to pick the Seton Hall team I had, not the Seton Hall team I wanted.

    My bracket is a better place because I picked Seton Hall.

    My exit strategy: GWU over Duke by 6.

    UConn is an enemy of freedom.

    Reprinted from McSweeney’s Lists; authored by Chris Song