Supreme Court allows disputed home searches without warrant

reply to post by greencmp


So you're saying if LEOs continually go back to a location searching for an individual to offer consent? I'm not sure if this ruling covers your assumption. Based upon this decision, if two individuals are at the location, at the same time, and offer differing responses as to consent, LEOs may search the property. If LEOs go "consent shopping" SCOTUS may have an objection.

BeliefInReality
reply to post by greencmp

 

So you're saying if LEOs continually go back to a location searching for an individual to offer consent? I'm not sure if this ruling covers your assumption. Based upon this decision, if two individuals are at the location, at the same time, and offer differing responses as to consent, LEOs may search the property. If LEOs go "consent shopping" SCOTUS may have an objection.

Well, they took him outside and then proceeded to look for a more amenable resident. I am not sure exactly what the logic was, perhaps he was considered "not home" once he was outside?

Unless I am mistaken, this is not an example of domestic abuse where someone is at risk of harm. There was no screaming victim on the floor yelling "yes, for Pete's sake, come in!"

reply to post by greencmp


I agree this may not have been the best thing to do to the woman, as the subject will surely be a little peeved that she gave consent. That being said, they both were on the premises at the same time and, as far as I know, SCOTUS didn't see this as "consent shopping."

BeliefInReality
reply to post by greencmp

 

I agree this may not have been the best thing to do to the woman, as the subject will surely be a little peeved that she gave consent. That being said, they both were on the premises at the same time and, as far as I know, SCOTUS didn't see this as "consent shopping."

I guess my final argument to myself was to measure whether this was a spirit vs letter of the law scenario which I concluded it was.

reply to post by greencmp


I think you have a good point. Legal? Yes, according to SCOTUS. Ethical? Questionable.

BeliefInReality
reply to post by NowanKenubi

 

No, the judge didn't just throw out the 4th amendment. This ruling involves an exception to the warrant rule, whereas after obtaining CONSENT, from a lawful tenant (not landlord, property manager, or even owner of the space if it is rented), a LEO may search a space. This is a well known exception that has been around for years. All this ruling does is say that if two adults have differing opinions on whether a search may occur, LEOs have the authority to search the property.

edit on 25-2-2014 by BeliefInReality because: (no reason given)

Yes it means one person can make the decision for inherent rights for the other person.

How about the 1st amendment is interpreted differently too. Same premise. Individual x gave up his free speech so individual y better not complain about it. Since they live together.

This is about precedence. Plain and simple. Getting another way to get the foot in the door so that when they run into another obstacle they can chip away at that one. Laws are open to the interpretation of the person making the ruling at that time so it could be overturned or it could be made with MORE loopholes in the future.

What you have to realize is this situation.

(Knock Knock) Person on premise answers and is shot. Police enter. Person who answers dies. Police say they gave consent...any questions?

From Huffinton Post:

Justice Samuel Alito wrote the court's 6-3 decision holding that an occupant may not object to a search when he is not at home.

"We therefore hold that an occupant who is absent due to a lawful detention or arrest stands in the same shoes as an occupant who is absent for any other reason," Alito said.

In other words, if you are absent from your property then the police can enter your home. At least that how it reads, very open ended with no real boundaries.

An "occupant" is entirely different than a "resident".

A resident has signed the lease and is legally obligated to pay the rent and follow the terms of the lease.
An occupant is someone living in an apartment without signing or being added to the lease.
An occupant is not responsible for making lease payments or keeping the terms of the lease.
This is the reason anyone living in an apartment over the age of 18 should be on the lease.

Link

So, technically, an occupant is anyone within the dwelling at the time the officers arrive.
The need to prove they actually live there would only need to come later, after entry.

NowanKenubi
Wow... Did that stoopid judge just kind of invalidate the use for warrants, plain and simple?... wow...

Nope...

A consent to search (verbal) has always existed as an exception to the 4th amendment. There are some federal appeals circuits that have ruled that all parties residing in a house must give consent. If one person declines, a warrant would be needed. I have yet to se a Law Enforcement agency that does not use a waiver in order to document the verbal consent.

Absent consent, and depending on the situation, Law enforcement needs a warrant in order to search a residence. Law enforcement can conduct a limited search of a residence without a warrant in order to ensure there are no other people in the residence (officer / public safety). Those types of searches restrict the search to only areas a human can hide and only applies to people. Another ruling allows an officer to enter a residence without a warrant if the person is actively trying to destroy evidence. Even then, once secured, law enforcement needs a warrant to search the residence.

Search warrants require probable cause, detailing the items that are the subject of a search. Again leo's can only search where the items in question could be contained (IE a search warrant for a residence, where the car in the garage is the item in question, would prevent officers from conducting a search of the inside of the residence).

As for persons being home - If I remember right there was a Supreme Court ruling / Federal Appeals ruling that required a person be home when a warrant is executed (ill try and find the info - my state was affected by the ruling). There was also an issue on whether or not the people who reside in the residence can remain in the residence during a search.

The ruling in California does not change the 4th amendment requirement of a warrant being needed to search a residence.

Oaktree
So, technically, an occupant is anyone within the dwelling at the time the officers arrive.
The need to prove they actually live there would only need to come later, after entry.

It would need to be a person who is in lawful possession / control of the property.

As for resident vs occupant - It will vary from state to state. In my state we have what's called established residency. If the homeowner allows a person to reside at the residence, after so much time (usually about 2 months for us), that person has established residency, regardless if their name is on the lease or not (in order to boot the person from the house, the homeowner has to file eviction paperwork with the courts / sheriff's office).

This ruling does not change anything. All it does is clarifies previous appeals court / supreme court rulings that required all parties lawfully residing at the residence to give consent to search. If one person refused a warrant was required. There are other factors that come into play (mitigating circumstances / fresh pursuit etc) that can affect the situation as well.

The LA Times apparently is trying to up circulation of their paper by using a misleading title.

NowanKenubi
Wow... Did that stoopid judge just kind of invalidate the use for warrants, plain and simple?... wow...

Not in so much words. The ruling is highly narrow in its application. I do not disagree with the Opinion of the court on this one except that they are making it in a vacuum absent of the reality of just how far local police forces have stretched their authority in the first place.

I take exception in how the media is portraying the case, which doesn't do the debate any justice. For instance, one headline reads: Supreme Court Rules Cops Don’t Need Warrant to Search Your Home

That just isn't the case nor the correct interpretation of the Opinion of the Court.

boncho
So what about a landlord that gives consent when the tenant hasn't? Or what about a wife that is unaware of anything and simply says okay because she doesn't realize it might be in her interest to say no. Or what about a child that is 18 living with parents and they wait for him to leave and ask the parents, the parents then regret the decision?

Landlord -- no unless there is a provision in a lease agreement that allows no-notice entry by the landlord. A wife unaware is still a co-occupant of the dwelling and thus has the authority to allow police to enter upon voluntary consent.

There is so many ways for this to be manipulated.

This is why I hold reservations on the ruling. On its face, I do not see it as a violation of the 4th Amendment; but in the hands of an ever-growing police state that pushes their authority to the fringe, I do not see it as a good thing.

buni11687
reply to post by chiefsmom

 

If that happened at an apartment, I would think then a parent, that owns the home, gets arrested, but has an 18 year old at home, the kid could say yes, and it would be legal too?

From what I understand, yes, it would be legal. If the owner is off the scene and objects to a search without a warrant, a co-tenant can say yes to a search without a warrant.

edit on 25-2-2014 by buni11687 because: (no reason given)

So, if one tenant says no and the other says yes, all they have to do is arrest Mr No for mopery, problem solved. I bet it won't take a month for this to become SOP.