search and seizure

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search and seizure

Postby Shapley » Wed Mar 22, 2006 5:16 pm

Here's an interesting one:

http://www.msnbc.msn.com/id/11959183/

Stevens said that “assuming that both spouses are competent, neither one is a master possessing the power to override the other’s constitutional right to deny entry to their castle.”

Couldn't the statement as easily have said:

“assuming that both spouses are competent, neither one is a master possessing the power to override the other’s constitutional right to allow entry to their castle.”

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Re: search and seizure

Postby OperaTenor » Wed Mar 22, 2006 5:45 pm

It's too bad the majority took the coward's way out and didn't make a sweeping judgement.

On it's face, I'd say it's best to err on the side of privacy, given both parties are competent and present at the time of the request for entry. Anecdotally, if it was a case(using Robert's logic) of potential harm coming to a wife, if she's right there and appears to be competent, she has other options to protect herself at that moment, and the responding officer(s) can make an assessment and offer her alternatives(like remaining in their company).

As for the parsing, the statements are equivalent. I think Steven's probably chose "deny" because this was a denial of entry issue.

<small>[ 03-22-2006, 05:46 PM: Message edited by: OperaTenor ]</small>
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Re: search and seizure

Postby piqaboo » Thu Mar 23, 2006 10:51 am

Its interesting that the right to deny entrance was given precedence over the right to permit it.

I'm not entirely sure how I feel about that. Needs more thought. Seems to be erring on the side of privacy rights, which I would tend to approve. However, I understand why womens' rights groups are worried. ..think... think.... think..... OW!!!!!!! My brain hurts!!!!!!!
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Re: search and seizure

Postby Shapley » Thu Mar 23, 2006 11:18 am

Piq,

I think it's a real stumper. In the past, police needed permission to enter in order for the search to be legal, which they clearly had, now it seems they need unanimous concent to enter, at least from those present. I think it's a bad precedent. From the looks of things, the wife wanted his illegal activities discovered, and the time needed to acquire a warrant would have given him time to destroy the evidence.

I'm a firm believer in protection against unreasonable search and seizure, but from what I can see this search was very reasonable.

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Re: search and seizure

Postby Selma in Sandy Eggo » Thu Mar 23, 2006 11:19 am

Originally posted by piqaboo:
OW!!!!!!! My brain hurts!!!!!!!
More coffee. Excedrin. Deep breaths.

Ahhh. That's better.

I'm not sure the Supremes were right on this one. The wife clearly alleged that there was a supply of illegal drugs present, and invited the police in. The husband said, "go away".

In the face of an allegation of drugs in the house, with an invitation from one of the couple, the police should leave? Because they don't have a warrant for drugs? When it's the wife inviting and the original mission was to deal with a domestic dispute?

It's my own opinion that all domestic dispute calls should include entry of the residence. In particular, any children present should be looked at to see if they are upset or seem stressed or frightened. The adults should be assessed to see whether one or the other needs some sort of assistance. None of this can be done adequately from outside the front door.
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Re: search and seizure

Postby OperaTenor » Thu Mar 23, 2006 11:28 am

To me, there are enough other guidlines to go by,or can be established, to ensure the safety of people involved(you can read that as "frail women" if you like, but IMHO, it goes both ways), while respecting the privacy of an individual. Even if it was a group of >2, all else being equal, I think the privacy rights of as few as one would trump warrantless entry.

Aside to that, aren't there procedures in place these days for law enforcement to obtain a probable cause warrant fairly quickly, like, while they wait with the suspect to make sure he/she doesn't destroy evidence, as a general case?

C'mon Haggis, shoot all of this reasoning down. We're all waiting with bated breath....
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Re: search and seizure

Postby piqaboo » Thu Mar 23, 2006 11:29 am

Nor can inviting the wife to exit be sufficient, because she can be physically restrained and threatened into saying everythings alright.

domestic abuse 911 calls now get asked certain questions in a yes no format so they can communicate things like "even tho I;m saying everythings ok and I just panicked and I was silly to call, and just ignore this call, Im saying all this because my husband is threatening me and please send the police asap"

As to the issue of permitting / denying...
as decided, it gives more weight to denial, which is where I'm hurting my head. Not in the specifics of this case, but in general.
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Re: search and seizure

Postby barfle » Thu Mar 23, 2006 11:30 am

It's just my opinion, but I figure any legal resident should have the right to deny entry to anyone they don't want in the place.

If there's a case of domestic violence, which this appears to be, then that's what ought to have been the focus of the investigation. She was trying to get him nailed for drug posession instead of spousal abuse. One of those "I'll get the SOB one way or another" kind of thngs. Again, the Supreme Court doesn't make judgements on what they feel is right, they make judgements on what is Constitutional. At least they're supposed to.

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Re: search and seizure

Postby OperaTenor » Thu Mar 23, 2006 11:40 am

There seems to be a gender split on analysis here.

I'm pretty sure, that if children are involved, or that if there are any signs of duress(and cops are generally pretty good at spotting signs of either, regardless of how clever the perp thinks he/she might be - and we've seen lots of evidence of just how stupid criminals tend to be), that violates my contention of "all else being equal", and the police would have more options regarding entry.

Granting the odd exception, I'm positive there are a multitude of methods of ensuring safety without violating privacy.

I'm trying to imagine Piq's scenario of a wife being physically restrained and forced to say everything's okay. How can a person restrain/threaten another in full view of a police officer without giving any of it away? A cop can request(forcefully) that all parties come out into the open and stand apart. He may not be able to enter to without a warrant, but he can make them come out. If the husband in this scenario is standing behind the door with a weapon at his wife's back, it's already escalated to a hostage/standoff situation and all of the points about entry are moot.

PS. Just for perspective, if there is even a suggestion that it will be a domestic violence situation, the cops tend to send the whole shift over to respond.

<small>[ 03-23-2006, 11:51 AM: Message edited by: OperaTenor ]</small>
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Re: search and seizure

Postby Selma in Sandy Eggo » Thu Mar 23, 2006 11:56 am

Gender split. Yup.

I'm not sure that the weighting of privacy (go away) over invitation (come see the drugs) was not also in part the weighting of "he said" as more important than "she said".

There is a pervasive tendancy to discount or completely ignore women's assertions. I'm fairly sure all of us have experienced it. It's very annoying.

There have been times when I've had to stand up, lower my voice pitch an octave, turn up the vocal volume, and smack the table while looming (as much as I can, which isn't all that much) because my words were quite simply not heard. Suddenly, because I can act like a pissed-off alpha male, I become visible.

The Supremes may have been technically correct in the constitutionality of their decision; I'm not enough of a legalistic hairsplitter to tell and we haven't heard the entire case. Still, I suspect that the police were right to enter at the woman's invitation.
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Re: search and seizure

Postby Shapley » Thu Mar 23, 2006 12:04 pm

Barfle,

RE:My roomate in college did not have the right to let someone else go through my stuff.

I'm not sure if this was 'community property' State, making it 'their's stuff, but it was definitely 'their' house.

Back to the initial post, I think it was a toss of the coin as to whether or not the judge used the term 'deny' or 'allow' in the ruling, and either would have been just as correct, yet the consequences are very different. It's things like this that make me glad I'm not a judge.

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Re: search and seizure

Postby barfle » Thu Mar 23, 2006 12:17 pm

As I sit here, far far away from the kind of problems this decision was intended to address, I can see many cases where having any resident of a domicile having veto power over its use is valid, and only a few where it might not be. In college, it was "our" room, but it was "my" stuff. Now that I'm married, legally everything is "our" stuff, but I still have the good sense to not mess with about 40% of it. And that include those "projects" in the house.

And, yes, I think that decision would be a tough one to make, but knowing what I do of the circumstances and the Constitution, I believe it was proper.
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Re: search and seizure

Postby piqaboo » Thu Mar 23, 2006 12:25 pm

And Im still thinking, so the conclusion of a gendor split is a premature one. As I noted in my first post, I tend to think leaning toward privacy is the right way to go, but.... it does get into exactly and only that in a he said/she said situation: is the right to permit entry subject to the right to deny it. Ouch again.

"scenario of a wife being physically restrained and forced to say everything's okay. " I'll show ya sometime, honey. You play the wife ;)
Or maybe I'll put the baby in a baby carrier on my chest and tell you what would happen if you let the cops in.

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Re: search and seizure

Postby OperaTenor » Thu Mar 23, 2006 12:41 pm

And I have personal experience that directly counters your contention/experience - perhaps way more pertinent to the topic.

The cops can still make EVERYONE come outside, and that levels the playing field considerably. Do you think a baby/small child will cooperate enough with the perp to enable them to pull it off?

How can you physically restrain me and force me to say things against my will, in full view of someone trained to look for something hinky, including over-dominance?

The only thing the polce do more than answer domestic dispute calls is hand out high speed driving awards.

PS. Men sometimes have to put on the "alpha male" act, too.

<small>[ 03-23-2006, 12:43 PM: Message edited by: OperaTenor ]</small>
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Re: search and seizure

Postby Shapley » Thu Mar 23, 2006 12:44 pm

The gender question will simply have to remain arguable: Would the decision have been different if the husband had invited entry and the wife refused it? What if it had been a gay couple? Or an unrelated pair or group of people.

Clearly, if the wife changed her mind upon the husband's objection, and before entry was obtained, the police would have had to obtain a warrant. There is nothing to indicate that this occurred, and that the wife wanted the police to enter and the husband did not. I tend to believe that, since the initial call was a domestic dispute case, there would be ample reason to believe that the wife was threatened and that entrance into the house would be relative to the case.

Either way the ruling went, one half of the owners of the house were going to lose some of their authority as a homeowner. There's nothing that says she allowed the police to rummage through her husband's sock drawer, only that she allowed them to enter a house of which she was joint owner. The drugs were apparently in plain sight. My college roommate and I never denied one another the right to have guests of their choosing, yet we still maintained a 'hands off' approach regarding personnal possessions. I could be incorrect, but I think allowing entry does not automatically allow police the right to begin a search of the premises. Opening drawers and cabinets would still have required a warrant.

Again, I'm speculating here, but based on what little information I have, I would have ruled in favour of allowing entry were I in a position to do so.

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Re: search and seizure

Postby OperaTenor » Thu Mar 23, 2006 12:53 pm

I was under the impression the wife told the cops the husband had drugs under the bed, so it may be they weren't in plain sight, and even though te cops had been given a specific location, they would not been found without a search otherwise.

BTW, I don't mean to sound like I'm defending a possible lying, cheating, abusive druggie.
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Re: search and seizure

Postby piqaboo » Thu Mar 23, 2006 1:00 pm

And I'm trying to move away from the specifics of this one case and to a general situation of which would/should prevail: right to grant or right to deny permission.


Cops cant make nobuddy do nuttin. thats why they shot that guy in escondido who was wearing the baby on his chest. he robbed a convenience store. He scared his neighbors. Neither are subject to the death penalty. cops asked him to come out, he refused. Ended up dead. But in a sense, he won. He never surrendered his right to stay in his castle.
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Re: search and seizure

Postby Shapley » Thu Mar 23, 2006 1:15 pm

They've expanded the news article since I first posted the link, plus added a window with a clip from ABC news which says that the wife 'led them to the bedroom where a straw was found with traces of cocaine'. It does not say whether it was in plain view or under the bed, but they would not have found it by simply being allowed inside the door.

Nonetheless, as Piq points out, the Supreme Courts job is to decide the case in manner with an eye to its implications on future cases of similar context. That being said, and since I give equal weight to one persons right to 'allow' as to another persons right to 'deny', I'm inclinced to decide that it time for a beer.

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Re: search and seizure

Postby OperaTenor » Thu Mar 23, 2006 2:00 pm

Originally posted by piqaboo:
And I'm trying to move away from the specifics of this one case and to a general situation of which would/should prevail: right to grant or right to deny permission.


Cops cant make nobuddy do nuttin. thats why they shot that guy in escondido who was wearing the baby on his chest. he robbed a convenience store. He scared his neighbors. Neither are subject to the death penalty. cops asked him to come out, he refused. Ended up dead. But in a sense, he won. He never surrendered his right to stay in his castle.
But the specifics matter. Isn't the shooting you cited under investigation as to its propriety?

I think I'm not being clear. All else being equal(i.e., all parties are competent, cooperative and safe), the privacy right of the indivdual is paramount, IMO. Once a complicating factor is thrown in(i.e., a party refuses to cooperate, or there is a question of anyone's safety) to me, the rules would change. Then the right to privacy should take a back seat to safety(i.e., making sure no one gets hurt or killed).

In a domestic dispute, lack of complete cooperation with the police can quickly devolve into something far more serious the cops can act forcefully on.

I caught my ex lying about cheating. In the ensuing argument, she called 911 claiming I physically hurt her(it was actually her pounding on me). Three teams showed up in repsonse(considering it was after midnight in a not very large city, it might have been the whole shift). I was calm and cooperative(the cop's assessment, not mine). That, and the fact they saw absolutely no sign of the slightest injury on my ex(they were looking for anything down to a rub mark), convinced them I hadn't done anything.

Despite the fact she was lying to them and behaving erratically(she was pracically yelling at them because they would't arrest me), I was told to go find somewhere else to spend the night, and if I didn't they'd find someplace for me(jail).

I took it upon myself to learn as much as I could from that, including asking a lot of questions of the police that came to the motorcycle shop. They take domestic dispute calls very seriously, and employ a lot of clever techniques to control the situation. The last thing they want is for a domestic dispute to escalate.

A postscript: Imagine my pride, when one of the responding officers showed upat the motorcyle dealership shopping for a bike and recognized me as the "domestic violence call from the other night"!

<small>[ 03-23-2006, 02:06 PM: Message edited by: OperaTenor ]</small>
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Re: search and seizure

Postby Shapley » Thu Mar 23, 2006 2:45 pm

OT,

In some States, the police are now required to make an arrest if called to a domestic dispute. Apparently, this is in response to the number of cases where, after being cooperative with the police during their 'visit', a spouse has beaten the crap out of the one that called the police.

The arrest does not have to result in charges, and can simply entail a ride to a local motel or safe-house.

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