Jennie&Tim on 24/3/2006 at 14:31
My husband and I were discussing the recent Supreme Court ruling that one person cannot invite the police to search over another person's objections if they both live someplace; and we disagreed about it. I said that it was a good ruling, because (as I later heard it more elegantly put than I did) one person cannot waive another person's rights. He felt it would create a lot of problems when you had one person gone or many people living together, as in a commune.
How will it be resolved if you have a large group of people, and only say five percent object? I'd guess that they'd get a "veto" as my husband called it.
Does it make a difference if a person is not there to actually object? I would not expect police to search my home without a warrent if I was not there after all. Does everyone have to be there and give permission?
If everyone has to give permission, does this apply in all cases? My husband brought up the scenario where one spouse is travelling, and the police are searching for a fugitive; can the spouse who is there give permission alone since the other spouse is non-contactable? There'd be a reasonable presumption that the absent spouse would agree, and it's not entry to look for evidence of a crime, but to protect the inhabitants of the house.
Rug Burn Junky on 24/3/2006 at 15:44
Well, not really having enough time to sink my teeth into it here, I can give you a quick sketch of my thoughts, because I found it interesting when I read a quick article about it yesterday.
For one thing, you have to look at it conceptually. The protection of the 4th amendment is a shield. It's tied to the person, not necessarily the place. Since it is personal right, others simply can't waive it for you, as you noted.
The thing about the multiple parties, or commune type scenerio can be distinguished on a number of levels, but primarily, because of the interests involved, the right of an individual is balanced against their expectation of privacy, and whether or not it's reasonable.
If you live in a common living area - sharing a room with others? Yeah, they can let the police search the room. There's no reasonable expectation of privacy in a place shared with that many people.
Can they give permission for the police to search your stuff? Well, that's a stickier question. If it's just out in the open, yeah probably. If it's in a locked closet, and you're standing there saying "This is my personal closet, and I'm not giving you the right to search my stuff" well, most likely not. Same thing if you have your own room.
So I think, ultimately, the exceptions that your husband is bringing up are already covered under the law.
It's a balancing - the more shared a space is, the more another person has a right to waive and let the police search, but it has to be balanced against the reasonable expectation of privacy of a person - if that person is there telling you to get out, I think most people would expect some privacy. Which is why the fact of whether you are present has an effect. If the only person there, who clearly has dominion over the space, is giving permission to the police, it would place an undue burden on law enforcement to have to wait and get permission from everyone who may live there. The present party is assumed to have permission to waive on behalf of the absent one.
The other thing to consider is the relationship of the parties. and I don't know if this was brought up in the opinions, but that there is spousal privilege involved, even if only peripherally. Depending on how it were done, there would many issues involved in using the wife's testimony to support a warrant in the first place. Anything he's told her in confidence is protected (his right: she can't waive it). Anything she knows or has witnessed on her own is also protected to some extent (her right: can't be compelled to testify). If they couldn't necessarily get a warrant, why should the be able to do an end run by getting her consent?
On top of which, these are both principles for the purpose of promoting the harmony of marriages (by protecting one's ability to be completely honest with one's spouse). Having a spouse waive your search & seizure protections for the purpose of a vindictive arrest, when she couldn't likely testify to the evidence in question on her own, seems to me to fly entirely in the face of these particular principles.
Have to say overall, I'm pretty disgusted by the dissenting opinion, from what I heard. The Scalia/Thomas/Roberts bloc, no doubt to be joined by Alito on future cases, is poised and ready to gut the 4th Amendment. All the talk of "Activist Judges" by the right wing? Well, if you believe that drastic changes to settled principles of law are "legislating from the bench," then that's the road this bloc is heading for.
Stitch on 24/3/2006 at 16:17
hey guys is there room for a third because i know an interested dude
Rug Burn Junky on 24/3/2006 at 16:46
Dude, step off, I'm mackin' here.
Turtle on 24/3/2006 at 17:52
HAY Guys...
Agent Monkeysee on 24/3/2006 at 19:09
what's goin on i brought some corn chips :cool:
ignatios on 24/3/2006 at 19:48
i came for the cockporn
i mean popcorn
theBlackman on 24/3/2006 at 20:57
Good question Jennie and Tim.
Excellent interpretive opinion expressed there Rug Burn. :thumb:
D'Juhn Keep on 24/3/2006 at 21:09
Good one liners, Stitch, Monkeysee :thumb:
Turtle, you still suck :mad:
AR Master on 24/3/2006 at 21:20
not rbj not answering questions
