A Man’s Home is the Government’s Castle
Via Radley Balko, this truly frightening ruling:
Police may enter Californians’ homes without warrants to arrest those suspected of driving under the influence, the California Supreme Court ruled Thursday in a case testing the scope of the Fourth Amendment right to be free from unreasonable searches and seizures.
The 6-1 decision follows similar rulings in about a dozen other states. A dissenting justice said the majority handed authorities a “free pass” to unlawfully enter private homes and arrest people without warrants.
Under the Fourth Amendment, authorities are prohibited from entering a home and making an arrest without a warrant unless so-called “exigent” circumstances are present. Those include “hot pursuit” of a fleeing felon, imminent destruction of evidence and the risk of danger to the police or other persons inside or outside of a house, among others.
In this case, Justice Marvin Baxter wrote that the loss of evidence at issue was obtaining a measurement of the suspect’s blood-alcohol level. Baxter added that a contrary ruling would allow “the corruption of evidence that occurs when the suspect takes advantage of any delay to ingest more alcohol — or to claim to have done so — or when the suspect evades police capture until he or she is no longer intoxicated.”
Baxter and the majority was cautious in saying the decision would not give police carte blanche powers.
This should scare the hell out of anyone with half a brain. Welcome to the modern Nanny state- “Just like the STASI, But You Are Safer And We CARE!”
I just got my parked car totalled by a drunk driver out here in L.A. He left his car at the scene and it’s been over a month with no resolution.
I’m less angry about it than I was a few weeks ago, but even then I wouldn’t have wanted the guy to be taken in without a warrant.
What about the case where, wait for it, you drive home and then actually do drink more?
Why do I have a vision of dating a cops ex, and driving home after to dinner for a nightcap (and hopefully, a “nightcap”) and having SWAT burst down my door…
Not sure I agree with your take. If the defendant (DUIer) is given any time outside of his car alone (like his house), he/she can make the claim that any alcohol in their system was due to this ingestion, and not in their system when driving.
From published reports, this is exactly what Cheney did after shooting the Old Man. He went back to his cabin (or wherever) and immediately had a drink. Why? So any alcohol found–had they actually followed the law and tested him–would be attributed to this fresh cocktail.
Hm. I would’ve thought that we would *want* to encourage drunk drivers to get home and out of the car. Apparently not.
I’m too lazy to hunt down the text of the decision and they probably wouldn’t spell all this out even in the unlikely event it’s the case… but we can hope that the majority’s reasoning was that this is an inevitable consequence of the “exigent circumstances” precedent, and they don’t like the implications of their ruling but couldn’t do otherwise, and their ruling should be overturned by the U.S. Supreme Court and should take “exigent circumstances” down with it.
At least, that’s my hope. I don’t agree with Balko on everything, but I’d rather the courts err on his side of this issue than on the side of the SFPD.
Bull. Whenever a court rules on a Constitutional issue and says they do not mean to set the obvious-if-not-inevitable precedent, you know something’s wrong. (No subtext intended in there. No, really!) :)
Man, it’s good to finally see you back John. This post (especially since I’m a Californian) as well as your post below on the gay marriage issue remind me why I always come back here.
At any rate, add this ruling to this LATimes piece, to the R’s new campaign driven gay marriage amendment push, and I really wonder where our country is headed. I mean, I thought we fought the Soviet Union to maintain freedom and democracy, not dissassemble it ourselves.
Yep, DUI laws are where the slippery slope of disregard for the 4th amendment began.
Wonder when MADD will try to pursue the authority to tap phones in a quest to protect us from the “terrorism of the roads?”
I still say that if cities were serious about reducing DUI, there would be more available public transportation after the bars close.
Yeah, I remember a recent case where a certain court (a Court even!) went to great lengths to say “no backsies” on a ruling of some import.
This is so unlikely that it’s ridiculous, but it’s still interesting (or frightening) to note that if you live in CA, it’s now possible that you could have your phone tapped without a warrant, your home entered without a warrant, be arrested without a warrant, be secretly held in prison forever without a trial or access to a lawyer and tortured.
The times they are a-changin’.
Anyone know what the dozen other states with similar laws are? I’ll put a bet on Utah–oops, that’s probably illegal there.
I seem to recall someone testifying before congress recently (perhaps during the patriot act renewal debate) that citizens should not worry about the requesting-library-records language because no one would EVER do that.
yet this week we learned otherwise.
Assuming it’s even possible at this point, I wonder how many decades it will take to unfuck this country.
I really disagree here. Clearly, if the Police have reason to believe your drunk and you’ve been driving, they wouldn’t be at your front door anyhow.
“Via Radley Balko, this truly frightening ruling…”
Radley Balko has something truly frightening on a daily basis. And yet this stuff invokes outrage in so few of us.
Only in Bush’s America.
does that involve a sobriety test given by Sting?
does that involve a sobriety test given by Sting?
Yes, you have to sing “Roxanne” backwards in order to pass.
drip drip drip… that is the sound of our rights being slowly flushed down the toilet…
Remember when, “its a free country” used to mean something?
Not to let factiness get in the way, but creeping authoritarianism under the guise of the war on (non-perscription) drugs is a bipartisan problem.
Oh I agree Pooh, but I have never in my life had such a sickly feeling about America and her ideals.
The sooner sanity returns the better and I don’t mean that in necessarily in the form of a Democratic leadership.
Hell Dubya has me missing GH Bush and Reagan. Remember when they called Ronnie a “cowboy” for just joking about the kind of stuff that GW has pulled?
We live in fascinating times, sky deity help us.
the majority’s reasoning was that this is an inevitable consequence of the “exigent circumstances” precedent, and they don’t like the implications of their ruling but couldn’t do otherwise
Very unlikely. Most states recognize a broader right of privacy than does the federal gov’t, and I have a hard time believing California isn’t one of those states.
So the court could’ve refused to find exigent circumstances on state constitutional grounds & been immune from SCOTUS review.
The opinion is here if any one cares to read it before crapping their pants.
CA does indeed, but it’s not grounded in a state constitutional provision (unlike e.g. AK and MT), for what that’s worth.
Well, that’s the result of a) a lawsuit-happy society (whatever happened to personal responsibility?), b) a bunch of dumfuck drunk drivers running around and NOT getting taken off the roads, c) nanny-state we-gotta-protect-you, coupled with d) creeping meddling due to the Drug War (something loved by conservatives.)
Me, I don’t care what drunk drivers do as long as they only do it to themselves and not to others. Unfortunately, they have a tendency to kill other people as well. Also unfortunate is we really don’t have a country that has much public transportation, which makes driving a car something considered to be more of a right than a privilege. (Being a drunk driver in Japan, for example. You do NOT want to try this.)
wow, John, I actually agree with you, based on the circumstances of this case. From your link….
If this had been a case of police officers trying to stop someone who was driving erratically, and who got home and ran into his house, the warrantless search would have been justified. But, IMHO, the simple fact that a “neighbor” called to make the accusation, and the accused was seen walking in the house after his wife said he was sleeping, makes this an obvious case of abuse of due process.
I could see circumstances where such a ruling might be tolerable, e.g. cops observe vehicle being driven erratically, but suspect arrives home before a traffic stop can be made.
But the facts of the case truly astound. A witness reported a potental drunk driver and the police entered a private residence based on an identification of the vehicle reportedly involved. That strikes me as thin gruel for a warrant, much less a warrantless search and arrest.
Clearly, none of you has read the case yet.
Oh come on now. You don’t think Reagan was serious? He was. It’s just the Liberal run media would have had a heyday if he tried to implement his dreams.
Thank god we god rid of that liberal bias. Now the President can implement the programs we need to keep us safe at night.
Clearly, none of you has read the case yet.
OK, I just read the case. And its obvious that the police did not have sufficient evidence that the accused had been drunk driving — the simple fact that one person claimed he was drunk driving is insufficient. The police need to observe the act itself, or have cooborrating evidence, before entering someone’s home without a warrant simply because someone else claimed he’d committed a crime.
Largely what P.Luk said (can I comment despite having skimmed rather than read the case?)
P.l and Pooh are wrong about a requirement for “corroborating” evidence. Not only is the testimony of one witness enough to get probable cause for a warrant (assuming it credibly establishes all the factors needed) its enough to convict a person of a crime beyond a reasonable doubt.
Anyhow, if you read the opinion, there is corroborating evidence including present sense impressions of the percipient witness, and police observations, the car in the driveway still warm, the guy drunk off his ass inside etc.
A) Spot the magic word. Gimme a W! Gimme a A…
B) Your second point is not quite correct. You are more likely thinking of something like a murder where you have proof of the crime itself (the body) and merely need to establish the identity of the perpetrator. My neighbor testifying that I was driving ‘erratically’ is not enough to convict me of doing so in the absence of anything else.
Pooh: 1) read the opinion more closely there is more than erratic driving.
2) my second point is completely correct – the testimony of one witness, if believed and if it establishes every element of the crime, is sufficient to convict. You will find that charge in the criminal jury instructions of every state and federal jurisdiction.
P.S. for a warrant or warrantless entry justified by hot pursuit or another exception, you don’t need proof of every element of the crime, only probable cause. there was more than sufficient cause if you review the facts. maybe people have an issue with the hot pursuit doctrine. it is controversial, but fairly longstanding. not a Bush era creation.
I’m not arguing the hornbook law, I’m arguing that there is no way that evidence consisting solely of neighbor lady saying she saw him drive drunk would be considered legally sufficient.
Having reread the facts, I grant that this is a closer case – insofar as it’s not just the neighbor lady – the police didn’t just burst in, they did some investigation. So on balance, while I have no problem with the result here, the application to the next case is what’s more troubling.
This decision from one of the most liberal state Supreme Courts in the country is most encouraging, and entirely consistent with a growing trend among the states. I believe this decision is essentially consistent with positions taken in similar cases in about a dozen other states over recent years.
The facts of the case don’t make much difference: it’s still an abuse of (police) power.
Drunk driving is a bad thing. It’s a bad thing because drunken drivers are more likely to get into accidents in which people die. Granted.
But this guy had gotten home without getting into an accident, without killing anyone. So why did the cops have to burst into his house to arrest him for a crime that didn’t happen?
“But,” I hear you say, “drunk driving is a crime even if nothing bad happens!”
Yes, but is it a crime, then, really? Drunk driving is a crime while you’re committing it because of the risk of what could happen while you’re doing it. Once you’re out of the car, there’s no longer a risk that you’ll get into an accident.
How, then, can it be a crime sufficient to justify busting someone in his home after the fact, when he’s no longer presenting a threat to pedestrians or other drivers?
Would you also support the police going into your house to arrest you for, say, speeding? Or talking on a cell phone while driving? Because that’s the logical extensions of this case.
At some point there has to be some discretionary thinking, either by the cops or by the judge reviewing their behavior afterwards. When someone is no longer engaging in the action that is the reason for the action being a crime is, IMO, a point at which that discretionary thinking should take place.
The police actions were way out of proportion to the offense. Period.
The exigency regarding the loss of evidence would not be present in the reckless driving ot cell phone cases (assuming they were crimes and not mere traffic infractions which wouldn’t justify warrants anyhow).
Let me all pose a question: assume driver mowed over a person. The answer is the same – not because of the dead pedestrian but because the evidence of intoxication will vanish.
Let me all pose a question: assume driver mowed over a person. The answer is the same – not because of the dead pedestrian but because the evidence of intoxication will vanish.
I disagree–or not so much disagree, as think its a bad argument. If someone witnessed a hit and run driver, the police would be justified in entering the home upon seeing evidence of intoxication of the person identified as the driver because of the crime (hit and run driving) itself).
You are right that police can get arrest warrants (for people) and search warrants (for evidence) of other crimes too (drunk driving IS a crime). This case is about well-established exceptions to the warrant requirement – hot pursuit or other exigencies such as destruction or loss of evidence. You obviously don’t like it in some cases, but it isn’t a product of the Bush administration (or Schwarzenegger even).
Pooh:
The decision:
Sounds like the Court thought about that, too.
Just like The Left to jump all over the decision without actually reading it.
Heaven forbid the moonbats would actually know the facts before raising a fuss.
“Just Like the STASI, But You Are Safer and We Care!”
This has John Cole outraged. And I have to agree. Police may enter Californians’ homes without warrants to arrest those suspected of driving under the influence, the California Supreme Court ruled Thursday in a case testing the scope of the…
Nanny state, hell. We’re sliding toward a fascist state where the perceived ends justify whatever means those in power deem necessary. And, those in power are appointing just the judges who will ease their way in bringing this about.
I just finished reading the cite. Probably the most significant point of the whole thing is why the court ruled that Welsh didn’t apply.
Welsh is a case where that court threw out a DUI conviction because the officers did exactly what these officers did – entered the home without a warrant to make the arrest. The critical difference the court recognized is that in Wisconsin (the Welsh case) a DUI is not a criminal offense. In California it is. Much precedence cited – to include remarks from the Welsh decision about how if the DUI in Wisconsin had been criminal the court would probably have allowed that arrest. A crime was committed. The clincher was that the circumstances fell into the legal and practical definition of ‘hot pursuit’ (not the legal term, but the principle applies). So you’ve got immediate pursuit and criminal attempt to evade arrest subsequent to a crime. That’s been a pretty consistent authority for warrantless entry to effect an arrest in other cases.
Kirk
I don’t remember writing this, but I must have. It might be time to check the ABV on some of those Tim F beers.
Disagree, the body is evidence of intoxication (equivocal perhaps) – but much like the murder case it is established that bad things have gone down and identification of the perp becomes the prime concern – in this case, there is no objective evidence that a crime occured.
Though, I think Casey is overselling the ‘bursting into the home’ bit based on the facts as reported.
“This should scare anyone with half a brain.”
Small sample. Include those Americans with a quarter of a brain.
Welcome to the Stasi.. nanny state, etc.
Oh, for fuck sake! The nanny state might sweat bureaucratically that you are overweight and let you know via a wordy memo. The Stasi showed up at the front door and you disappeared regardless of your bodyfat readings.
Grow the fuck up, Cole.
Love, John
I was thinking the same thing. Note the sophisticated spoofer trademark, the insistence that because some institution (in this case the California Supreme Court) was ultra-liberal 20 years ago, it must still be ultra-liberal today.
A side issue, but here’s an indication of how desperate the Left is to win this year. Their grip on the minority vote is clearly tenuous.
John Cole says:
“This should scare the hell out of anyone with half a brain. Welcome to the modern Nanny state- ‘Just like the STASI, But You Are Safer And We CARE!'”
As a loyal Republican and Bush supporter I must say I don’t understand this remark…….
In the words of the Greatest Administration EVER to govern the good ole US of A (For you traitor libs out there: I mean Bush43):
“If you have done nothing wrong, then you have nothing to fear”
Such disloyal statements as you personally evidence above, leads me to conclude that you DO have something to fear…
On the International Troll Scale, that’s about a 4. Although with a little more spoofiness you could have elevated it to a 5.
Just as a point of reference, “All lefties are poopyheads” is a 4 on the Scale.
For all you Deadheads.
Vote Democrat.
Well, you are down to a Troll 3 now, Brian.
For reference, to be considered good or original, a troll needs to be at about a 6.5 to 7.0 or higher.
Has the regular writer of your lame spoofs gone on vacation? This is really a new low for you.
P.luk – Your argument is backwards –
Your argument is an argument in favor of entering a home without an arrest warrant when no exigency jusitifes the warrantless entry. That’s even worse.
Pooh: I know a subway motorman and a ferry captain that would really like your proposal. But, the legal reality is (and long has been) you can’t use your home as a sanctuary to destroy evidence…privacy is a shield, not a sword.
Shorter Brian:
Look, a Jackalope!
Phooey! I had the best link possible in there, one which was both funny and completely SFW.
Well, I suppose it’s better than vanishing into moderation heck.
This is just terrible. Echoes of Bush’s wiretapping and trampling of human rights here in the U.S. When will governments leave the terrorists alone and respect their right to privacy?
It’s a well known fact that Jackalopes breed every two years. Since mating season has started, I’d expect to see alot more Jackalopes popping up in the coming months.
Like our NSA, a.k.a. “wiretapping jackbooted thugs”.
In an earlier post this week, I wrote:
A new example to add to this comment: Haditha = My Lai.
Facts don’t mean a thing to you people.
You’re right, Brian. The left brings nothing to the table but mindless ad hominems and “sky is falling” alarmism. Then they wonder why the American people have shut them out of any serious discussion of national issues.
Frankly, I wish they’d grow up and find something useful to say. But until they learn to love America and to support its leadership in times of war, I have little hope for them.
Welp, it’s an all spoof thread now. Brian has taken the thread.
Closed. All real posters should move along.
GOP4, we’ve had our disagreements, but friendly advice department: You are now conversing with a spoof.
In any case, if either one of you is a real righty, the other one is out to make you look like a fool.
Keep the Jackalopes coming. It looks like good ol’ detective work ferreted out the would be Canadian terrorists. Not the monitoring of millions of Candian’s private communications.
The Decider decides, the Defenders defend. This is the natural way of the world. Big government is here to help.
Stop calling everyone who disagrees with you a spoof, Gandalf.
Are you suggesting that only three or four people disagree with me?
Then, I’d say I’ve won.
Huh?
Stop calling everyone who disagrees with you a spoof, Gandalf.
Prove that you’re not a spoof.
Or for that matter, just make a believable denial. That would put you ahead of both Par and Brian.
[…] John Cole links to a news article that says: Police may enter Californians’ homes without warrants to arrest those suspected of driving under the influence, the California Supreme Court ruled Thursday in a case testing the scope of the Fourth Amendment right to be free from unreasonable searches and seizures. […]
Prove that you’re not a jelly doughnut. That would put you ahead of John F. Kennedy, for one.
I’m not a spoof. Not a spoof. Not a spoof. I. Am. Not. A. Spoof. I could repeat this ad nauseam, but somehow I doubt it will “satisfy” your inquisition.
Can you prove to me that Saddam didn’t have WMDs?
There are many government and non-government officials who can, but first you have to take your fingers out of yours ears and stop humming, “Neener…neener…neener.”
Jelly Donut… good one. Petrified brain fluid sample from lack of use.
What I see happening in the courts is exactly what I predicted when Congress passed the first Patriot Act and subsequent amendments. When you begin eroding the rights of the citizenry, it winds its way into every part and parcel of the law like a rampant cancer, all the way down to your local police.
The courts are no longer a protection of the multitude, but that of government and corporations.