Imagine a scenario where police arrive at your door and ask to search your
home. Knowing your rights, you object, saying that if they want to search
your home, they need to get a warrant. Then imagine that police arrest
you and escort you off the premises, and then convince another resident
of your home to consent to an in-home search. Is that search lawful?
According to a Supreme Court ruling in February 2014, it is. This very
thing happened to a Los Angeles resident. When he objected to an in-home
search, police arrested him and then convinced another resident of the
home to let them inside. The evidence police found during this search
resulted in multiple criminal charges and a 14-year prison sentence.
To put it another way, when two occupants of the same residence disagree
on whether to allow police to conduct a warrantless search of the premises,
the resident that objects to the police search must be physically present
to do so. The “physically present” requirement does not change
even if it was police that escorted the dissenter from the premises, so
long as it was a lawful detainment or arrest.
Writing for the majority opinion, Justice Alito said that being absent
from the premises due to a lawful detention should be considered the same
as being absent from the premises for any other reason. He further explained
that if the consenting resident is physically present, then there is no
need for police to obtain a warrant to conduct an in-home search.
What does this mean for the Fourth Amendment? Well, it doesn’t change.
The Fourth Amendment provides protection against unreasonable searches
and seizures, so all search and seizure warrants require probable cause
in order to be lawful. The question of when and in what situations police
need a warrant to do one thing or another is a question that has been
debated before. What is certain is that police can only conduct searches
and seizures if they have consent or a warrant.
In the dissenting opinion, Judge Ginsburg compared these types of searches
to a police state where police don’t just enforce the law –
they are the law. According to Ginsburg, “[This] decision tells
the police they may dodge [the warrant requirement], never mind ample
time to secure the approval of a neutral magistrate.” She continued
by stating that further diluting of the warrant requirement is unnecessary
due to the speed and ease with which police can now obtain warrants, and
should be “vigilantly resisted.”
For more on this story,
view it in The Washington Post.
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