drwex (drwex) wrote,

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Hard cases make bad law

Some of you know I read Supreme Court decisions for fun now and then. I haven't yet had time to read the 5-3 decision in Fernandez v. California, but I've read the summaries. This case has expanded police powers in ways that I think are potentially dangerous.

The case involves a situation where two people were present in a home. The police asked for permission to enter; one of the two people said yes but the other objected. Supreme Court precedent from 2006 said that in such cases the police needed to secure a warrant before searching. However, in this case they did something different: they arrested the man, and an hour later they returned and re-asked the woman who again consented to the search.

Today's ruling says that a person who is arrested and taken away is the same as someone who is absent and therefore cannot legally object to the search. His prior objection was rendered null by his arrest (or so the majority claims). I think that's a big problem.

To begin with, it gives police tremendous incentive to arrest people who are non-consenting. Even if they don't file any charges, all they need to do is lay an accusation, bundle you into a patrol car and presto they've removed your objection to a search. Why bother with that pesky warrant procedure when all it takes is a few minutes to get someone out of the way? (If you think you can't be arrested for standing on your front step telling police "No, I do not consent to a search of my home" boy do YOU not understand how the system works.)

I said this case was "hard" in part because the facts show the defendant in a bad light. He was arrested for a robbery - the police had been in pursuit when he entered the home - and when they knocked the other occupant was a woman who showed visible signs of physical abuse. The police seem quite justified in removing him. But given that an hour had passed, why couldn't they go before a magistrate judge and get a warrant?

I find it significant that the three objecting SCOTUS judges were the women on the Court. You might expect them to side naturally with the battered woman in this case, who did give consent to the search. I'll be interested to see what Ginsburg wrote in her dissent.
Tags: law, scotus, thinky stuff
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