Friday, February 28, 2014

Supreme Court Ruling on Fourth Amendment This Week Warrants Criticism

The Bill of Rights was created to protect our individual rights, and the Fourth Amendment was no exception. Our Fourth Amendment states that "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." The Founding Fathers were astute enough to realize that the right of property and expectation of privacy are important for a free society.

This past Tuesday, the Supreme Court did a real number on the Fourth Amendment by ruling on Fernandez v. California. Back in 2006, the Court ruled in Georgia v. Randolph that the police have no constitutional authority to search an individual's premises where one resident disagrees to a warrantless search while another consents. What the 6-3 ruling of Fernandez v. California permits is that in the event that a resident who objects to a police search is removed from the residence through a legal arrest [or merely leaves the premises], a remaining co-resident can provide the police consent to search the premises without demanding a warrant. Until this past Tuesday, the police would have needed to obtain a warrant if a resident refused a warrantless search by the police. That has since changed.

The idea behind the Fourth Amendment is to protect individuals from unreasonable searches and seizures. Much like the Court has put limits on the First Amendment (e.g., Shenck v. United States), the Court has previously ruled on exceptions to the Fourth Amendment, including motor vehicle searches (Carroll v. United States, 1925), evidence in plain view (Horton v. California, 1990), and exigent circumstances (Kentucky v. King, 2011). Even cases of third-party consent searches (United States v. Matlock, 1974) are permissible under United States law. Even if the aforementioned examples can be construed as justifiable, Fernandez v. California is not one of those instances.

In his majority ruling, Justice Alito had stated that "even with modern technological advances, the warrant procedure imposes burdens on the officers who wish to search, the magistrate who must review the warrant application, and the party willing to give consent (III, C)." For Alito, a warrantless search  is somehow still in the spirit of the Fourth Amendment, irrespective of the availability (own emphasis added) of a warrant (ibid). Really? If anything, the modern technology makes it simpler than ever to acquire a warrant. Also, a warrant is supposed to burden the police. If a warrant didn't burden the police, they can enter houses on a whim, which is what occurs in police states. If a warrantless search is in the spirit of the Fourth Amendment, then why bother having a Fourth Amendment at all?

Rather than become the norm, Georgia v. Randolph became the narrow exception to the rule of how to handle warrantless searches with regards to a non-consenting resident. In this case, only one consenting co-occupant needs to be present for a warrantless search, irrespective of the physical presence of the [other] non-consenting co-resident. The message that Fernandez v. California sends is that the police can circumvent the law either by arresting the non-consenting resident in order to conduct a warrantless search or wait until the non-compliant individual leaves the premises, after which the police can acquire the permission of a compliant co-resident. Why go through the pain of getting a warrant when you can just play the waiting game or even arrest the suspect? Although the Supreme Court has not provided the police with a carte blanche for warrantless searches, it has nevertheless eroded something that is vital for civil liberties to flourish.

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