Tuesday, April 21, 2009

Scalia and Thomas Discover the Fourth Amendment, Probably an Earlier Math Error

“So, we had that case last year on the Second Amendment, the gun one. I know, NRA and all that. Turns out that the Court had written about that back in the thirties of the last century. Wrote some stuff that made it a bit tough for us to come to a decision; so, we punted – most of us won’t be here next time one of issues we opened up get up here.

You know what? One of the clerks got looking and discovered a couple of others. Other what? Amendments to the Constitution! I know, I know, we get stuck sometimes, we know what we think and then, Bam! There it is, we have to read it and figure out a way to get around it.

Did you know that the Constitution won’t let the Government quarter soldiers in your house unless there’s a war going on, and then only “as prescribed by law?” It’s right there in the Third Amendment that the clerk found. Yeah, I had to look up quartering. Know something else? We’ve never had a case asking us to decide anything about it. I’ll bet Bush had a signing statement that deals with it though. That Yoo guy was pretty good with that kind of stuff.

So the Clerk kept reading and found this Fourth Amendment. He brought it into us. We were floored! Listen to this:

‘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.’

Imagine that. Then we got looking and realized that the Court has had tons of cases that deal with rights of people to be secure in their own property. I’ll bet Cheney and Rumsfeld never read that one.

So, what to do? This scumball got pulled over, didn’t have a valid driver’s license or something. Turned out the cop pulled him out of the car with his buddies. They were all in cuffs in different police cars, no danger to anyone. Then the damn cop goes back to the car and searches the glove compartment and finds some coke. We looked at all the cases that Rehnquist did chipping away at the Amendment. No PC! What? Probable Cause, read the damn Amendment. If you’re going to invade someone’s property you’ve got to have PC and then get a warrant. The damn cases say that you can only skip that if there’s imminent danger or a weapon or drugs lying around to create this thing called reasonable articulable suspicion, that sort of thing. There was none of that.

So we had to kick the scum’s ass loose. You know, we may have to go after some of the BushCo folks if they come up to us. Wiretaps. Predator. It's endless!

I’m just glad the Founding Fathers decided to skip from the Eighth to the Tenth Amendment. Roe what? Bowers v. Hardwick?”

8 comments:

Anonymous said...

Another one they tend to ignore is the 8th: "Excessive bail shall not be required."

In Texas we had a case where a woman accused of murder was given a $500,000 bail. Her friends and family all took out home equity loans, and after a few months came up with the money. So the judge raised her bail to $1,000,000.

It seems like setting the bail at "twice whatever you can raise" is kind of unreasonable.

Unknown said...

I am missing some lawyer humor or something here.

SonjaB said...

Actually the courts have upheld vehicle search incident to arrest. So if the scumbag with no DL was arrested for that charge, then cops can search the car and the contents

Dave said...

Cliff Notes for non-lawyers:

Scalia and Thomas are not fans, for the most part, of the Bill of Rights.

It was thus suprising that they were in the majority on this week's opinion restricting "good faith" searches of vehicles by police.

Over the past couple of decades the Court has chipped away at the Warren Court's civil liberty decisions. When I was in law school back in the 80's, I used to read Brennen's dissents to find out how Rehnquist was hiding the ball in his majority opinions.

Last year, the Court was faced with the Second Amendment and had to decide just what the hell it meant. They knew they didn't want to declare a right to own nukes; but, at the same time they didn't want to mess with what they saw as a longstanding tradition of personal gun ownership. So, as I said in the post, they punted. There is a right to bear arms; but, the government can and should restrict it.

That's the same approach the Court has taken to most of the Bill of Rights: you have the right of free speach, religion, assembly, security in property and so on; but, where the government sees a need to restrict it, they can. This results in decades of back and forth decisions as we've seen with the Fourth and Fifth Amendments and to a lesser extent the Sixth and Eighth Amendments.

Unfairly, I thought it would be fun to posit that Scalia and Thomas were really great guys that just hadn't read the Bill of Rights and when they did, they stepped up and did the right thing; but they were a bit worried that they might have to do the same thing with the Bush Administration's serial trampling of civil liberties.

Finally, I alluded, unsuccessfully, to Roe v. Wade and Bowers v. Hardwick, both of which dealt with the Ninth Amendment"s reservation of unenumerated rights to the people, pretending that Scalia and Thomas hadn't read that one either and would have a hell of a time with it now that they were on the straight and narrow path of proper constitutional interpretation.

I am now officially retiring from the humor business, I'm not too good at it. Big Rick is right, I just can't tell a joke.

Dave said...

Sonja, It's still there, the police just have to do it when it's needed while there is a possibilty of harm, not after the perp is cuffed in the back of the police car.

Lifehiker said...

This case seems to have been a litmus test for "strict constructionists" like Scalia and Thomas.

They've spent their judicial careers preaching that the constitution needs to be taken literally, word for word.

If a bright seventh grader can read the 4th amendment and conclude probable cause and a search warrant are necessary before property is searched, Scalia and Thomas voting against the Arizona court would clearly have contradicted their strict constructionist stance.

But I know in my heart that this was a difficult vote for both of them. In their hearts, they wanted the cops to be able to club the bad guy down, tear his car apart with the jaws of life, and water torture him at the jailhouse. After all, he might possibly be a terrorist.

Unknown said...

How are impounded vehicles affected? Example - these guys are arrested for various violations and teh vehicle is impounded. Police routinely "inventory" the contents of impounded vehicles.

What happens if one of these "inventories" reveals the gun and cocaine?

Dave said...

Dale, it's been years since I looked at your issue; but, at the point the police legitmally arrest someone, then hook up the vehicle, they can fully search it, kind of like Sonja was talking about.

The case is about bad timing, as is much of criminal law.