Supreme Court goes WAAAYYYYY over the line

[VHSLhelper 571]

allows cops who SMELL ganja the right to bypass getting a search warrant because they thought the guy was destroying evidence

 

http://www.washingtonpost.com/politics/supreme-court-sides-with-police-who-lacking-warrant-followed-smell-of-pot-into-apartment/2011/05/16/AFzlnq4G_story.html

[Lance 228]

looks bad on paper, but the reality is that cops can get a warrant for anything anyway at any time...this just buys you some time...if they want to come in your house, they will come in your house either way....any "rights" you think you have are thinly veiled.

[Guest The Variable]

Techincally, arent they right? That WOULD be burning evidence of a crime (possession)

[Deleted Account 5,203]

allows cops who SMELL ganja the right to bypass getting a search warrant because they thought the guy was destroying evidence

 

http://www.washingtonpost.com/politics/supreme-court-sides-with-police-who-lacking-warrant-followed-smell-of-pot-into-apartment/2011/05/16/AFzlnq4G_story.html

 

Very interesting, but not surprising. For the last couple of decades, the pendulum has swung in favor of law enforcement regarding evidentiary matters. This is just another example of that.

 

Frankly, I don't have much of a problem with it. Marijuana has a fairly distinctive smell. Jurisprudence already allows officers to bypass search warrants if other of the five senses are activated (sight, touch, sound). See: Richards v. Wisconsin

 

Courts have also given significant weight to the rationale of "destroying the evidence". For example, cops can violate the "knock and announce" rule if cops have reasonable suspicion to believe that one is destroying evidence. This seems to be a step beyond that.

 

BTW: This is an 8-1 decision. It should be noted, both Kagan and Sotomayor were among the 8.

Edited May 17, 2011 by UVAObserver

[Deleted Account 5,203]

looks bad on paper, but the reality is that cops can get a warrant for anything anyway at any time...this just buys you some time...if they want to come in your house, they will come in your house either way....any "rights" you think you have are thinly veiled.

 

This isn't remotely true, but you're entitled to your beliefs.

[Lance 228]

This isn't remotely true, but you're entitled to your beliefs.

 

oh come on you know the judges hand these out like candy at halloween...get real.

 

i should say, under the circumstances noted in the above case...no way a judge will not issue a search warrant under those circumstances.

[VHSLhelper 571]

http://bdtonline.com/columns/x370468569/Dismantling-the-Constitution-The-4th-Amendment-is-under-attack

[bluefieldRocks 14]

So a cop can come into my home and search for drugs because he can say he could smell them?

[Deleted Account 5,203]

http://bdtonline.com/columns/x370468569/Dismantling-the-Constitution-The-4th-Amendment-is-under-attack

 

This would be nice, if Shott weren't either misguided or wrong about most everything. I'll take this response paragraph-by-paragraph.

 

1. The Bill of Rights was ratified in 1791. The Constitution became official in 1788. Like it or not, Shott, the Bill of Rights wasn't essential to the ratification of the Constitution. The only state with enough anti-federalist influence to hold out for longer periods of time was Rhode Island.

 

2. Quoting the 4th Amendment. OK, I guess.

 

3. OK, I read it carefully.

 

4. No, it's not really THAT plain. Else, we wouldn't have reams and reams of case law interpreting it. Along with the 1st Amendment, it's probably the amendment that's the most VAGUE. But don't you just love when people just spout off things to make themselves look impressive?

 

5. Again, Shott, it's not clear. Much room for interpretation.

 

6. Shott really shows his ignorance by quoting an Indiana Supreme Court case. This would be fine, if we lived in Indiana. The Supreme Court of the United States holds final jurisdiction over the Constitution. Indiana simply holds jurisdiction over Indiana. We should not be held to account to an INDIANA Supreme Court case, unless we live in Terre Haute.

 

7. Wow, he actually quoted the right judicial body this time, bravo! But Shott is wrong on his interpretation. The Supreme Court is THE body that decides what unclear Constitutional phrases/words mean. Since Shott wouldn't know the "plain feel" doctrine or the "exceptions to warrants" requirements from a hole in the ground, let's just say that the Supreme Court made the correct logical leap. If Richards v. Wisconsin is to be given ANY weight, this decision is correct. Notice the ONE vote against it? Notice the EIGHT votes for it? That's not even remotely close.

 

8. Ruth Bader Ginsburg, again, wrote the ONLY dissent. Ginsburg went against DECADES of Supreme Court precedent in her dissent, a dissent which I should note is devoid of any logic. She flails at the wind to try to controvert Richards v. Wisconsin and the Terry line of cases.

 

9. Uh, no, they have not. What a ridiculous statement.

 

10. THIS HAS BEEN SUPREME COURT PRECEDENT FOR FOURTEEN YEARS! NOTHING HAS CHANGED! Richards v. Wisconsin. READ IT.

 

11. Again, WRONG. Just one more warrant exception was added, "smell". If you have any common sense, you know that pot has a unique smell. Shott's taking a tiny fragment of Criminal Procedure and working himself into a tizzy over it.

 

12. First sentence is right, second sentence is debatable. However, warrant exceptions have been in place for a LONG time...

 

13. As I have said, Ginsburg is the only justice who completely disregarded stare decisis to promote her own judicial agenda.

 

14. Oh yes, let's make an incorrect, overbroad statement to pump up America. America, F-YEAH!

 

15. After he was incorrect in the 12 of the previous 14 paragraphs, I doubt he even lives in Bluefield, VA.

[Deleted Account 5,203]

oh come on you know the judges hand these out like candy at halloween...get real.

 

i should say, under the circumstances noted in the above case...no way a judge will not issue a search warrant under those circumstances.

 

I am real. You're the one that's trying to impart an incorrect layman's view on a legal subject (like Shott above).

 

1. Judges do not hand out warrants like candy. Warrants are hyper-technical documents, believe it or not, and a judge isn't going to risk the warrant being overturned upon technicalities to just hand them out willy-nilly.

 

2. The judge would likely issue a warrant, yes. But the evidence was going to have been destroyed anyway. There would've been a violation of the knock-and-announce rule. We're splitting hairs, because Supreme Court precedent covers them both.

[Lance 228]

The reality around here anyway, is that cops can get a warrant for about whatever they want in drug cases based on what they say and they know what to say to get it...so yes they get handed out like candy at halloween. I would love to see stats on how many (drug related) are granted vs. denied....i would bet that it's a very high % granted.

[Deleted Account 5,203]

The reality around here anyway, is that cops can get a warrant for about whatever they want in drug cases based on what they say and they know what to say to get it...so yes they get handed out like candy at halloween. I would love to see stats on how many (drug related) are granted vs. denied....i would bet that it's a very high % granted.

 

Ugh...

 

Lance, that's NOT the reality. The reality is not simply what you THINK happens, it is what ACTUALLY happens. From someone who has been in the system, let me yet again assure you that warrants do not get handed out like candy.

 

It's like arguing with your CPA what your tax exemptions are. One obviously has the experience, the other's just blowing smoke as to what he thinks might/should be the case.

[Deleted Account 5,203]

I submitted a Letter to the Editor for the BDT. Hopefully, they run it. It is a bit long, which may prevent it from submission. But here it is, in all its glory:

 

Upholding the Constitution: Supreme Court in the Right

 

I am writing in response to “Dismantling the Constitution: The 4th Amendment is under attackâ€, a May 24, 2011 column written by Mr. James H. Shott, a columnist for the Bluefield Daily Telegraph. I wish to comment on some of the unfounded assumptions and incorrect information in the article.

 

First, I must disagree with the historical aspect of the Bill of Rights as assigned by Mr. Shott. The Bill of Rights was not introduced at the Constitutional Convention in 1787. The Bill of Rights was introduced by native Virginian James Madison to the First Congress in 1789. The United States Constitution was drafted by that Constitutional Convention and ratified on September 17, 1787. The Constitution became the supreme law of the land upon the signing by New York on July 26, 1788. The Bill of Rights was not, as implied by Mr. Shott, a condition concurrent for the formation of the Union. The United States Constitution was formed to establish a more perfect union; the Bill of Rights came shortly thereafter to form a nearly perfect one.

 

Just like Mr. Shott, I will provide to you the text of the Fourth Amendment: “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, 33supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.â€. Just like Mr. Shott, I implore you to read it again.

 

However, unlike Mr. Shott, I am completely unable to determine how the Fourth Amendment is in any way plain or clear. For me, many questions abound. What exactly constitutes security “in their persons� What constitutes “effects� What makes a search “unreasonable� What qualifies as a “seizure� Does a warrant require more than probable cause, an oath, and a description? Just how much is required for “particularly describing� Rather than take a backhanded swipe at lawyers, I assure you that it is reasonable and acceptable to question the meaning of what is a nebulous phrase.

 

The Supreme Court of the United States is the ultimate arbiter of matters pertaining to the United States Constitution. However, I feel as if Mr. Shott’s appeal for residents of Virginia and West Virginia to heed the words of the Indiana Supreme Court is frankly unwarranted. In jurisprudence, a state supreme court’s opinion is only controlling within the boundary of that state. I propose that we leave to Indiana that which is Indiana’s; I propose that we leave to Virginia that which is Virginia’s; and I propose that we leave to West Virginia that which is West Virginia’s. However, we should also leave to the United States Supreme Court that which is the providence of the United States Supreme Court, and that is to be the final authority of the United States Constitution.

 

Now, I feel as if it is proper to turn attention to the crux of dispute, the United States Supreme Court’s May 16, 2011 ruling in Kentucky v. King, allowing police to enter a residence without a warrant based upon the plain smell of marijuana in the belief that evidence is or will shortly be destroyed. Mr. Shott mistakenly believes that this decision will allow police to run roughshod as if the United States simply became a fascist state overnight. This is simply not so.

 

What should strike readers first is that this decision commanded an 8-1 majority. With the conservative/liberal split that occupies the United States Supreme Court today, this is no easy task. A decision that can unify conservative justices such as Alito and Roberts with liberal justices such as Kagan and Sotomayor (recent Obama appointees, may I add) must have some merit. I will explain the merit below.

 

The fundamental basis of the United States Supreme Court, and indeed all courts in American jurisprudence, is the principle of stare decisis, which obligates judges to respect the precedents of prior legal decisions. This separates the courts of law from the courts of legal opinion, as Mr. Shott relied on the Los Angeles Times. What Mr. Shott does not indicate is that there are literally reams of Supreme Court precedents regarding the mere fifty-four words in the Fourth Amendment. Many of those reams either contradict Mr. Shott’s assumptions or prove him completely incorrect. All of those reams provide basis for the decision in Kentucky v. King.

 

If Mr. Shott now feels that police can violate the Fourth Amendment safeguards to enter a person’s home based upon the reason of destruction of evidence, I regret to inform him that he is fourteen years late with his outcry. Richards v. Wisconsin, a 1997 United States Supreme Court case, allows the police to violate the “knock-and-announce†rule if "reason to believe that evidence would likely be destroyed if advance notice were given". This is the exact same justification used in Kentucky v. King. If one is to value stare decisis, one must allow this search.

 

If Mr. Shott feels as if “smell†is a ridiculous ground upon which to conduct a warrantless search, I regret to inform him that such exceptions already exist for the sensory perceptions of sight, sound, and touch. I have already covered sound with Richards v. Wisconsin, the sound of a flushing toilet being the culprit there. Sight is covered with the “plain sight†doctrine found in the 1990 United State Supreme Court case of Horton v. California, where an officer can seize evidence without a warrant if found within plain view. Touch is covered with the “plain feel†doctrine found in the 1968 United States Supreme Court case of Terry v. Ohio, where an officer may seize contraband during a frisk if reasonable suspicion is present. If one will assume with me that smells may be unique, like a freshly fertilized field or a sulfur spring, smell is simply the next logical step.

 

Eight justices followed stare decisis to side with the Commonwealth of Kentucky. One did not-Ruth Bader Ginsburg. At the expense of making an already lengthy refutation that much longer, I implore you to read her dissent. Justice Ginsberg does frankly unbelievable mental gymnastics in reaching an untenable position that would destroy three decades of Fourth Amendment decisions. Justice Ginsberg attempts to disarm the police and erect a safe haven for criminals that far exceeds both legal precedent and the Constitution itself.

 

I will not make an appeal to patriotism as Mr. Shott did. Instead, I appeal to your reason and common sense to not make Mount Everest of a United States Supreme Court molehill.

[Lance 228]

Ugh...

 

Lance, that's NOT the reality. The reality is not simply what you THINK happens, it is what ACTUALLY happens. From someone who has been in the system, let me yet again assure you that warrants do not get handed out like candy.

 

It's like arguing with your CPA what your tax exemptions are. One obviously has the experience, the other's just blowing smoke as to what he thinks might/should be the case.

 

 

lol.

 

anyway...are there any sorts of stats on how many are approved vs. denied? public record sort of thing? I'd love to see th numbers on Buchanan, Tazewell, Dickenson, Wise, Washington and Russell Co's.

[Deleted Account 5,203]

lol.

 

anyway...are there any sorts of stats on how many are approved vs. denied? public record sort of thing? I'd love to see th numbers on Buchanan, Tazewell, Dickenson, Wise, Washington and Russell Co's.

 

I'm fairly sure that would be an internal matter, not something released to the public.

[Guest The Variable]

Awesome Letter to the Editor, UVAO. The high school debater in me loved the delivery. I hope they print it.

 

What about the smell of alcohol? Arent LEOs already allowed to conduct a FST or search of an automobile if they detect the smell of alcohol? Sounds to me as if all of this outrage really is much to do about nothing.

 

Who was the decenting opinion?

[Guest The Variable]

lol.

 

anyway...are there any sorts of stats on how many are approved vs. denied? public record sort of thing? I'd love to see th numbers on Buchanan, Tazewell, Dickenson, Wise, Washington and Russell Co's.

 

If you are worried about warrants being approved about any and everything, you have much bigger problems in your local judiciary to worry about.

[futbolking 766]

I'm starting to wonder why they call him "smokey" Shott now......hmmmmm

[Deleted Account 5,203]

Awesome Letter to the Editor, UVAO. The high school debater in me loved the delivery. I hope they print it.

 

What about the smell of alcohol? Arent LEOs already allowed to conduct a FST or search of an automobile if they detect the smell of alcohol? Sounds to me as if all of this outrage really is much to do about nothing.

 

Who was the decenting opinion?

 

Thank you very much! I hope they run it, but the length (~1200 words) doesn't much lead itself to it. I did ask them to get back in touch with me if they wanted me to shorten it, but that's highly unlikely to happen. I just could not get over how unfounded his opinions were and how inaccurate his historical take was.

 

Unless your state constitution grants greater protection than the Fourth Amendment (and PA's does...actually the subject of one of my bar exam questions), police are allowed to search entire vehicles for contraband under a lawful stop when the police have probable cause that there is contraband. Smell can be used to form probable cause under the "totality of the circumstances".

 

But you're exactly right: people are taking a long-settled point of civil procedure and working themselves into a fervor about it.

 

The dissenter was Ruth Bader Ginsburg.

[Guest The Variable]

The dissenter was Ruth Bader Ginsburg.

That ONE fact alone completely validates the SCOTUS decision.

[Deleted Account 5,203]

That ONE fact alone completely validates the SCOTUS decision.

 

No justice on the Supreme Court today more consistently disregards stare decisis to promote her own judicial agenda. Not even Scalia or Thomas. She would've fit right in on the Berger Court, which routinely just created judicial doctrines out of thin air with complete indifference as to the long-term ramifications.

Edited May 25, 2011 by UVAObserver

[Lance 228]

If you are worried about warrants being approved about any and everything, you have much bigger problems in your local judiciary to worry about.

 

i'm not worried about it, i would just like to see the numbers...I would bet they are upwards of 80% or higher...but, just a guess...if they are not public record then we will never know...i just know what i hear from friends in the know around here.

[Guest The Variable]

i'm not worried about it, i would just like to see the numbers...I would bet they are upwards of 80% or higher...but, just a guess...if they are not public record then we will never know...i just know what i hear from friends in the know around here.

 

Thats still 2 chances in 10 that a warrant would not be issued. That is hardly any and everything.

 

Could it be that the cops just have their act together when lobbying for a warrant? I dont know, Im not from your area.

[Lance 228]

Thats still 2 chances in 10 that a warrant would not be issued. That is hardly any and everything.

 

Could it be that the cops just have their act together when lobbying for a warrant? I dont know, Im not from your area.

 

I think the drug problem in this area is so big, it probably doesnt take much.

[ghs73 157]

I think the drug problem in this area is so big, it probably doesnt take much.

 

people outside of the area tend to think that just because the area is rural that drugs are not here. i am here to tell you from reality that they are as far back as 72. my brother was murdered in tazewell county and the police back then covered it up because of who was involved in it this i know for fact and if anyone wants the facts can talk to my mother who did all the searching and got facts as to who was involved but because the county sheriff at the time said suicide no one would get involved. but drugs are big in the county. so i have no problem with police doing what they have to, to get them out of the area. what the police are like now i dont know except for what kids and parents who still live in the area have to say. as for where i live now they do come in a home with just suspicion my nephew got arrested here with out a warrent to come into my sisters home because someone said he was impersonating a officer which he wasnt just taking care of my father who was very sick and taken to local hospital by nephew. but no warrent to come into my sisters house to arrest him. they opened the door and walked in and asked him his name and for the pistol he legally had on his side. of course he gave it to them and went with them.